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Legal Commentary

: Balkinization

The worst reason in the world to deny Joe Lieberman the Chair of the Homeland Security Committee

By Jack M. Balkin

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A story in Friday's NYTimes concerned the Democrats' response to the egregious Sen. Joseph Lieberman. I have disliked Lieberman since he casually joined in giving away Florida in 2000 (by refusing to countenance a challenge to amost undoubtedly illegal military absentee ballots), but that's really beside the point. I note the following part of the Times article:

Many Democrats say Mr. Lieberman had crossed a line not only by endorsing Mr. McCain, his longtime friend, but also serving as one of his closest advisers and by sharply questioning Mr. Obama?s qualifications to be president. Some Senate Democrats and aides say it is unthinkable to let Mr. Lieberman head a committee that will conduct oversight of the Obama administration.

It is a paradoxical truth that the very best reason to keep Sen. Lieberman in his position is precisely that he will be engaged in overseeing the Obama administration. As Rick Pildes and Daryl (no relation) Levinson wrote in a splendid Harvard Law Review article a couple of years ago, the single best explanation for the utter failure of Congress to engage in oversight of the Executive branch during periods of "united government" (as we will have beginning January 20, 2009) is party loyalty. This is why James Madison's optimism in the 51st Federalist about "checks and balances" has proved to be wrong. Congressional Republicans put their party loyalties above all else (until the past election season, when it suddenly became opportune for many of them to deny they ever heard of George W. Bush).

It would be terrible, frankly, if Democratic legislators prove to be as negligent as their Republican counterparts when they enjoyed a unifed government. Pldes and Levinson note that German practice is to put a member of the opposition in charge of at least one of the major committees of the Bundestag dealing with foreign or defense affairs. This is a fine idea. Needless to say, I anticipate that the Obama Administration will be the first in recorded history to do everything just right and, therefore need no whit of oversight. But, just in case I turn out to be wrong in my optimism, it would be good to know that Congress in fact was living up to its constitutional duty to ask hard questions and not simply playing dead before Administration assurances about the purity of its motives and quality of its policies.

I can understand the impulse to punish Sen. Lieberman. As Gail Collins suggested in an hilarious column this (Saturday) morning, if Lieberman, like Lindsay Graham, had promised to drown himself if Obama took North Carolina (or even get more than 60% of the vote in Connecticut), one might be tempted to hold Lieberman to the promise. But to want to deprive him of chairing the Homeland Security Committee because, God forbid, he might want to engage in vigorous oversight of the new administration is truly awful reasoning. It would truly be "putting country first" to keep Lieberman where he is (or, if one must exact some punishment for his betrayals, finding a Republican to replace him, perhaps Sen. Collins or, for that matter, John McCain, who I suspect will revert, after his disgraceful campaign that left so many people wondering why they ever admired him in the first place, to his earlier, and far better, self).

Full post as published by Balkinization on November 08, 2008 (boomark / email).