Karl Rove's Departure from the White House: How Rove's and Others' Bad Behavior Suggests a Set of Golden Rules for Government, Applicable Regardless of Which Party Is In Charge

By EDWARD LAZARUS

Thursday, Aug. 16, 2007

With Karl Rove's announced departure from the White House, the Darth Vader of politics exits stage right. Although the timing of Rove's move reflects the many congressional investigations that now have targeted him, his leaving became inevitable last November, when the American electorate shattered Rove's dream of a semi-permanent Republican majority.

One-party rule in Washington - the rare situation where one party controls all three branches of government - carries the seeds of its own destruction. Such imbalance invites the incompetence that accompanies cronyism and the corruption that accompanies arrogance. The electorate, it seems, can tolerate only so much before it clamors for and initiates significant change.

President Bush's extreme unpopularity now has Democrats dreaming of their own version of one-party rule come November 2008. I'm sure they would like to imagine that they will be more beneficent, competent, and honest than the current Administration has proven - no "Heckuva job, Brownie," fewer lobbyist kickbacks, less skewing of professional judgment to fit ideological preconceptions.

To be sure, the Democrats would be hard-pressed to match the destructive qualities of the current Administration. Thanks in no small part to Rove, policy and governance became - and continue to be -- a relentless partisan war, where loyalty and party advantage trump wisdom and accountability.

But Democrats have been known to be prone to their own set of foibles. And, human nature being what it is, they will find it difficult to escape their own set of blunders if, as seems reasonably likely, they take back control of the White House in 2008, while maintaining or even expanding their current majorities in Congress.

All of which raises the question of whether this moment of divided government might not provide at least a glimmer of an opportunity, if Democrats are willing to seize it, for Democrats and Republicans to try jointly to develop some "Golden Rules" for how government ought to operate -- irrespective of which party happens to be in control of Congress or the White House at any given time.

The Golden Rules of Government

Think of this as the Rawlsian "veil of ignorance" applied not to issues of justice, but to issues of structural politics. Just as Rawls challenged us to think about the rules for a fair and just society as if we had no idea whether we ourselves would be born into that society rich or poor, or black or white, so too we can think about government as if ignorant about whether our preferred party would be in or out of power.

Looking back over the last few years, it isn't hard to come up with issues of governmental structure and operation that have proven incredibly contentious, yet ought to be susceptible to at least some measure of reasonable consensus across party lines.

Golden Rule #1: Insulate DOJ from White House Political Influence

Take the current scandal over the Bush Administration's firing of various U.S. Attorneys. I can understand the Democrats' desire to investigate this issue to death. We ought to know whether some of these U.S. Attorneys were fired because they refused to play ball with a White House that wanted them to use the enormous power of investigation and prosecution for partisan ends. And we ought to know whether high-ranking officials have lied about this under oath.

But investigating the past is unlikely to get us very far in answering important questions about what, in the future, should be the proper relationship between the White House and the Department of Justice, between the Attorney General and local U.S. Attorneys, and between high-ranking DOJ political appointees and the civil servants who make up the professional backbone of the agency.

I have expressed some of my views on these topics in previous columns such as this recent one. But for present purposes, the important point is not to describe exactly what these relationships ought to be. Rather, it is to emphasize that, away from the glare of pending controversies, the differences in opinion regarding this issue among mainstream Democrats and Republicans are relatively minor.

This relative consensus was very much in evidence, for example, last month at the national convention of the American Constitution Society, where a bipartisan panel of high-ranking former White House and Justice Department officials discussed the proper relationship between these two institutions. Over and over again, these officials, who varied profoundly in their political allegiances, found common ground when asked about the proper degree of DOJ independence in a variety of tricky hypothetical situations.

Truth be told, regardless of party affiliation or ideology, people who have served as White House Counsel or Deputy Attorney General tend to have reasonably similar views about how to insulate DOJ's investigatory and enforcement apparatus from the White House's political apparatus. These similarities have emerged because each of their respective views has been shaped in the pressure-cooker of real experience and then tempered by hindsight. They understand both the theories and the practicalities involved - and these drive them not necessarily to perfect consensus, but at least to a perhaps-surprising likemindedness.

More "Golden Rules" About Other Structural Issues Are Likely to Draw Similar Consensus From Seasoned Participants If Partisanship Is Put Aside

In my experience, when veteran hands from DOJ privately express their views about other structural issues involving the department, the answers show a remarkable congruence - again, regardless of party ideology.

I have little doubt, moreover, that much the same would hold true about other structural issues. For example, I suspect that a bipartisan group of former top staffers to the Senate Judiciary Committee could agree on a fair number of basic ground rules about how the judicial confirmation process should work. Topics for potential agreement might well include such questions as: Should home state Senators have a veto over nominees for local seats on the bench? (Most probably would say yes.) Should secret holds be allowed? (Most probably would say no.) Should every nominee be entitled to a floor vote? (Most probably would say yes.) Should filibusters be allowed on this issue? (Most probably would say yes.) What kinds of information are truly relevant and necessary to evaluate a nominee? (Most would probably name the same categories of information -- regarding, for example, the nominees' present and past views and the quality of his or her analysis of legal issues.)

I wonder how many other topics might be susceptible to reasonable bipartisan consensus if the exigencies of the moment could be set aside. Would there really be that much difference between Democrats and Republicans on the issue of congressional ethics reform, if neither side knew who would have control of Congress?

It may well be that no one these days is much inclined to initiate such discussions. The Democrats are busy both fighting for extraordinarily important principles (like effective congressional oversight) and exacting their pound of flesh for the years of pain inflicted on them.

But, someday, and perhaps a day not so far off, the shoe will be on the other foot. And so, Pollyanna-ish as it might seem, this would be an ideal time for the Democrats, using the Congressional authority they now possess, to set up a bipartisan commission on political reform - a counterpart to the Iraq study group, aimed internally at the way we govern ourselves.

The mandate of the commission would be to suggest Golden Rule structural reforms - Manifestos of Good Governance, if you will - in those areas in which bipartisan consensus can be reached. Some of these suggestions might make the Democratic leadership cringe, now that they are in power. But they might bear in mind that the public currently thinks just about as poorly of Congress as it does about the President - and that looking at matters from behind Rawls' veil of ignorance might be better than looking at matters, sometime down the road, from behind the veil of defeat.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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