Nicholas Johnson
The Gazette, June 13, 2023, p. A5
Politicians who play by our democracy’s essential political norms put the oil in its joints. Those who violate them risk democracy’s creaking and breakdown.
Political norms are no more complicated than kindergarten norms. “Treat others as you want to be treated.” “Sharing is caring.” Like the norms of the NFL or movie studios.
Players want to win the game. But once over they accept the score and each other to maintain a league that can produce an $18 billion season. Bill Maher has explained how good movies can be made by actors who don’t like each other, but work together because, “We’ve got a movie to make.”
Politicians must do no less. They have a nation to govern. They must accept election results and maintain civility and respect for those with whom they disagree.
In 2008 a supporter of Senator John McCain attacked Obama as “an Arab.” McCain bristled, "No ma'am, he's a decent family man, citizen, that I just happen to have disagreements with.”
Abraham Lincoln beat Stephen Douglas for the presidency. Douglas’ response? "Partisan feeling must yield to patriotism. I'm with you, Mr. President, and God bless you."
In 2000 Senator Al Gore became the first presidential candidate since 1888 to win the plurality of the vote but lose the electoral vote. The election was ultimately decided by four Justices of the Supreme Court appointed by President Reagan and one appointee of President H.W. Bush. Al Gore’s response?
“While I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome …. For the sake of our unity as a people and the strength of our democracy, I offer my concession.” [Photo credit: C-SPAN; this is a still photo that does not link to the video. To watch and listen to the video of Al Gore's concession speech, Dec. 13, 2000, click here: https://www.c-span.org/video/?161263-1/al-gore-concession-speech -- a 7-minute video that should be seen by every American before the 2024 election.]
Equally important is the norm of forbearance. Just because the Constitution grants the president or Congress a power doesn’t mean its use complies with norms.
President Washington knew he was creating norms. His self-restraints included terms (two), executive orders (eight) and pardons (16). He only vetoed two bills, signing many with which he disagreed “out of respect” for the Congress.
Article II, section 2 of the Constitution says the president has power to appoint Supreme Court justices – “with the advice and consent of the Senate.”
In 1986 Democrats joined in the approval of President Reagan’s nomination of conservative Antonin Scalia for a 98-0 vote. Between 1866 and 2016 the Senate never refused to hold hearings on a president’s Supreme Court nomination – including the 74 occasions when it was the last year of the president’s term. Why? That was the norm.
Until President Obama’s nomination of Merrick Garland March 16, 2016. (Robert Bork was given a hearing; and supported by three Democrats and opposed by six Republicans.)
We have the power to fix our democracy – at the ballot box. Ask yourself four questions: “Does this candidate follow the norms? Practice tolerance and forbearance? Strengthen or weaken democracy? Would a kindergarten teacher say he or she ‘Plays well with others?’”
Nicholas Johnson is the author of “Columns of Democracy.” mailbox@nicholasjohnson.org
Chaffron, “Kindergarten Keynotes : 8 Gold Star Rules For the Grownup World,” Mack’s Musings, Aug. 7, 2018, https://mackthemaverick.com/2018/08/07/kindergarten-keynotes-8-gold-star-rules-for-the-grownup-world/
For a list: Google search “Kindergarten rules for adults”
NFL. Chris Kolmar, “20+ National Football League Demographic and Financial Statistics [2023]: NFL Revenue + History,” Zippia.com, March 27, 2023, https://www.zippia.com/advice/nfl-demographics-financials/ (“The NFL’s total 2022 revenue was $18 billion, an increase from $12.2 billion in 2020.”)
Personal observation: at least some opposing players greeting and even giving hugs to each other.
Movies. Bill Maher, “New Rule: Parliament Fights,” Real Time with Bill Maher, YouTube, Feb. 17, 2023, 1.5 million views as of June 5, 2023, https://www.youtube.com/watch?v=5O1ezj7qcwQ (“I know we hate each other, but we’ve got a movie to make.”)
McCain. John McCain’s defense of Obama. “McCain Counters Obama ‘Arab” Question,” https://www.youtube.com/watch?v=jrnRU3ocIH4 (“"No ma'am, he's a decent family man, citizen, that I just happen to have disagreements with on fundamental issues, and that's what this campaign is all about," McCain said to applause. https://abc7chicago.com/mccain-defends-obama-arab-2008-campaign-john/4058948/
“John McCain’s 2008 Concession speech,” https://www.npr.org/2008/11/05/96631784/transcript-of-john-mccains-concession-speech (numerous passages throughout)
Douglas. “Text of Gore’s Concession Speech,” New York Times, Dec. 13, 2000, https://www.nytimes.com/2000/12/13/politics/text-of-goreacutes-concession-speech.html (“Almost a century and a half ago, Senator Stephen Douglas told Abraham Lincoln, who had just defeated him for the presidency, "Partisan feeling must yield to patriotism. I'm with you, Mr. President, and God bless you.")
Gore. “2000 United States Presidential Election,” Wikipedia, https://en.wikipedia.org/wiki/2000_United_States_presidential_election (“Though Gore came in second in the electoral vote, he received 543,895 more popular votes than Bush,[53] making him the first person since Grover Cleveland in 1888 to win the popular vote but lose in the Electoral College.[54]”)
“Supreme Court Nominations (1789-Present),” U.S. Senate, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm (Voted against Gore: Reagan appointees Rehnquist, Kennedy, O’Connor, Scalia; HW Bush appointee Thomas Voted for Gore: Ford appointee Stevens; HW Bush appointee Souter; Clinton appointees Breyer and Ginsberg)
Mark S. Brodin, “Bush v. Gore: The Worst (or at least second-to-the-worst) Supreme Court Decision Ever,” 12 Nev. L.J. 563 (2012), https://scholars.law.unlv.edu/nlj/vol12/iss3/8/
“Al Gore,” Wikipedia, https://en.wikipedia.org/wiki/Al_Gore (“On December 13, 2000, Gore conceded the election.”)
“Text of Gore’s Concession Speech,” New York Times, Dec. 13, 2000, https://www.nytimes.com/2000/12/13/politics/text-of-goreacutes-concession-speech.html (“while I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome, which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”)
Washington. Restraint in number of terms. How Democracies Die, pp. 105-06
Restraint in issuing vetoes and executive orders. How Democracies Die, p. 129
“The Executive Clemency of George Washington: One of Just a Handful of Pardons Ever Signed by President George Washington,” RAAB Collection, https://www.raabcollection.com/presidential-autographs/george-washington-pardon (“The influence of Washington's clemency policy is striking. He signed very few clemency warrants as President, perhaps as few as 16, and of those known 16, since some were issued for multiple applicants, they covered 28 individuals.”)
Justices Appointments.
Constitution. The Constitution of the United States, Art. II, Sec. 2 (“He [the President] shall have Power, . . . and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . ..”)
Holding hearings. Supreme Court appointments norm. (“In theory, the Senate could block presidents from appointing any of their preferred … justices …. This has not happened because of an established Senate norm of deferring to presidents …. Between 1880 and 1980 more than 90 percent of Supreme Court nominees were approved …. In the 150-year span between 1866 and 2016 the Senate never once prevented the president from filling a Supreme Court seat.”) How Democracies Die, pp. 135-36.
Scalia appointment. “The ultra conservative Antonin Scalia, a Reagan appointee, was approved in 1986 by a vote of 98 to 0, despite the fact that the Democrats had more than enough votes (47) to filibuster.” How Democracies Die, pp. 136.
Successors’ appointments. “On seventy-four occasions during this period [1866-2016], presidents attempted to fill Court vacancies prior to the election of their successor. And on all seventy-four occasions – though not always on the first try – they were allowed to do so.” How Democracies Die, pp. 136.
Obama/Garland. “On March 16, 2016, President Barack Obama nominated appellate judge Merrick Garland to fill Scalia’s seat. ... a qualified candidate, and … an ideological moderate. But for the first time in American history, the U.S. Senate refused to even consider an elected president’s nominee for the Supreme Court. ... Since 1866, every time a president had moved to fill a Supreme Court vacancy prior to the election of his successor, he had been allowed to do so. … It was an extraordinary instance of norm breaking.” How Democracies Die, pp. 145-46.
“Merrick Garland Supreme Court nomination,” Wikipedia, https://en.wikipedia.org/wiki/Merrick_Garland_Supreme_Court_nomination (“On March 16, 2016, President Obama nominated Merrick Garland, the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacant seat on the Court.”)
Bork hearing. “Robert Bork Supreme Court nomination,” Wikipedia, https://en.wikipedia.org/wiki/Robert_Bork_Supreme_Court_nomination
General. Steven Levitsky and Daniel Ziblatt, How Democracies Die, New York: Crown, 2018 Index, “norms, democratic,” Index p. 308 pp. 5-8, 21, 23, 61-62, 65-78, 87-92 (rewriting rules), 100-144, 146-149, 153-155, 157-162 (mutual toleration), 167-175, 176-203 204, 210-211, 212-213, 217, 220, 222, 230-231
Google search: “origins of "norms," their relationship to regulations, laws, and constitutional provisions and how essential norms are to the preservation of a democracy”
Ashraf Ahmed, “A Theory of Constitutional Norms,” Michigan Law Review, May 2022, https://michiganlawreview.org/journal/a-theory-of-constitutional-norms/
Josh Chafetz & David E. Pozen, “How Constitutional Norms Break Down,” U.C.L.A. Law Review, 65 UCLA L. Rev. 1430 (2018), https://www.uclalawreview.org/how-constitutional-norms-break-down/
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