by Sanford Levinson

A number of readers of my previous contribution to Open University have chastised me, some quite severely, for using the words "constitutional crisis" to describe the commutation by George W. Bush of I. Lewis ("Scotter") Libby. Part of me is tempted simply to plead guilty to engaging in a case of blogger's hyperbole and let it go at that. It is indeed difficult to analogize the event to such clearly delineated "crises" as the Civil War (when Lincoln engaged in lots of constitutionally questionable actions) or the Great Depression (when Congress asserted broad new powers and, even more to the point, FDR stood ready to defy the Supreme Court had the 5-4 decision upholding suspension of the Gold Clause come out the other way). That being said, and conceded, I'm also tempted to stick to my guns and to suggest that even seeming trivialities like the Libby commutation can be evidence of a deeper crisis within the constitutional order. As I tried to suggest in my quotations from George Mason and Luther Martin (and other similar quotations are available), some of the opponents of the 1787 Constitution expressed real fears of the possibility for abuse of the pardoning power. We have, in our history, seen far fewer occasions of abuse than they might have predicted, and the question then becomes why? If one is, after all, a Chicago-style economist, one would predict that presidents would act to maximize their individual interests, which could on occasion include issuing highly dubious pardons. And we have certainly seen several occasions even before the Libby pardon of such abuse: The Rich pardon under Clinton seems quite indefensible, and even more serious, because more in line with what Mason and Martin were warning us against, was the Christmas pardon by the outgoing George H. W. Bush of men plausibly suspected of being co-conspirators in the Iran-Contra depredations, not to mention his pardon of the egregious Elliot Abrams, whose lying to Congress was deemed to be of little or not importance. But why haven't we seen more such pardons? The answer, I suggest, lies in a very old-fashioned notion of civic virtue, i.e., the willingness of political leaders actually to place something called "the health of the Republic" ahead of personal and partisan considerations. One doesn't want to get carried away in a burst of nostalgia, but consider that Warren Harding was willing to commute Eugene Debs's outrageous 10-year sentence for a speech opposing the war. Woodrow Wilson, secure in his own certainties of moral and political righteousness, would have let him rot in jail, and, of course, the Supreme Court had unanimously upheld his sentence. But that didn't stop Harding from doing the right thing in a context that could make him few political friends. The basic political crisis, which has a variety of constitutional dimensions, is that almost no one can take seriously the notion of civic virtue any longer. The key moment in the politics of the 1990's was Bill Kristol's memo to the Republican Party saying that they must oppose any and all attempts to rectify the problems of the medical care system proposed by Bill Clinton, since any cooperation would in effect assure his re-election in 1996 and probably entrench Democrats in power for much longer than that. There was nothing "illegal" (or "unconstitutional") about Kristol's memo, but it symbolizes the move toward the politics of "pure partisanship" that have created a mixture of political gridlock and partisan animosity. If there were any reason to believe that George W. Bush were indeed compassionate or indeed motivated by anything more than the crassest partisan interest, then one might be relatively casual about the Libby commutation. But he is neither of these things. Instead, the most plausible way of "reading" the commutation is as a thoroughly corrupt act designed to buy "Scooter's" continued silence on the techniques used to stifle political opponents especially during the run-up and early days of the war. Indeed, as a number of people have noted, "commutation" rather than "pardon" is perfect, since it keeps "Scooter" on a short leash for the remainder of the Bush Administration--does anyone doubt that the faithful lapdog will be "pardoned" on or about January 19, 2009--and, in addition, enables him to be able to claim his Fifth Amendment privilege should he be subpoenaed by Congress to testify. Is it a "crisis" if one observes that an old bridge connecting two sides of a city is beginning to sag a bit, or does one have to wait for its collapse? The Libby commutation is the equivalent of just such a sag in our constitutional order, which depends for its operation on some degree of minimal good-faith on the part of its leaders. George W. Bush has now joined Alberto ("Fredo") Gonzales in demonstrating that one can expect nothing other than rampaging and self-serving partisanship from those who have pledged to "take care" that our laws be enforced on some basis of relative equality. No one could possibly assert that we are currently a nation of "Equal Justice Under Law." Why isn't this a crisis?