Was John Yoo right after all?

Sandy Levinson

John Yoo is famous (or notorious) for suggesting that the American president should be conceived as similar to a Hanoverian monarch.  He has, of course, trotted out that theory with regard to the President's autonomous war powers, where I think he's wrong.  But there is one area where there might be something to Yoo's theory, which has to do with the way we all too often elect presidents without having more than the vaguest idea who will actually staff their administrations.  As I suggested in my previous post, this may be in part because we have a ridiculously over-individualized conception of the President and take seriously the absolute and utter fatuity of Romney's promising what he will do on his "first day in office" (just as Obama had promised to shut down Guantanamo). 

With Obama, for better and worse, we have an excellent idea who will staff his second term, save for Secretary of State, where it will apparently boil down to a choice between John Kerry and Susan Rice.  Presumably, there will be some other resignations, and, I must say, I'd love to know who will replace Tim Geithner, at best a debatable, if not egregious, choice as Secretary of the Treasury in the first term.  But with Ethc-a-sketch Mitt, we have no idea whether the Secretary of State will be mad-dog John Bolton (unlikely, perhaps, but who knows) or someone more sensible.  Will Richard Murdock (assuming he's a lawyer) emulate John Ashcroft and, after ignominious defeat in a Senate election, suddenly find himself Attorney General?  And so on.  A sensible political system might allow voters some insight on such issues before they vote, but, of course, that's not the American way of doing things.  Instead, we vote for pigs in a poke, full of illusions (and delusions) about what kind of people they'd actually appoint to important positions.  The Brits at least have "shadow cabinets"; we don't even have shadows of shadows.  It realy is as if we're still in the 18th century, voting for our elective monarch, constrained in some ways to be sure (again, see previous post), but with remarkable freedom concerning administrative appointments (save, of course, for Senate confirmation, which blows hot and cold as a genuine way of checking egregious appointments). 

One "benefit" of this election is that it demonstrates so many things that are wrong with our basic constitutional structures, but, insofar as the worst part of the Constitution is Article 5, I suspect that we will all continue to deny that the Constitution has anything to do with why most Americans, across party lines, have increasing contempt for their government.
Posted 5:38 PM by Sandy Levinson [link]