Power-sharing and the Barrett nomination: Delay a vote to protect democracy
Our Constitution has proven to be an amazing document. It provides a framework for governing a diverse people spread across a wide-ranging land. Its enduring success derives from a structure of power sharing that we call “checks and balances” reinforced by long-established norms and unwritten rules that shape the exercise of political control.
With three branches of government, we have a separation of powers that prevents any one person or small group from being entirely dominant at any time. And by providing for frequent elections, our constitutional architecture ensures in practice that leading roles transfer from one set of individuals and one party to another at regular intervals. Thus, the exercise of authority is also constrained over time.
Indeed, the orderly and peaceful transfer of power from one leader to another and one party to another has been the defining feature of the American model of government from George Washington’s return to Mt. Vernon after two terms as president to the present day. Over 230 years, the presidency has switched parties 25 times. Similarly, control of the Senate or House has changed on more than 60 occasions.
The promise that power will shift has been vital to the success of the project we call America. It establishes a logic of reciprocity that constrains abuses of authority and commits our leaders and our parties to act in conformity with norms of self-discipline and restraint. This spirit reflects an expectation that when the wheels of democracy turn — as they inevitably do — the opposition, which has then become dominant, will treat them with similar respect.
To put this essential idea another way, no contract can anticipate every twist and turn of fate, and thus the parties to it must be guided by broader concepts and norms for filling in the gaps and handling unanticipated circumstances. So, too, our Constitution depends on political leaders playing their roles in a manner that is consistent with its overarching purpose: the commitment to sharing power across individuals and institutions at any particular moment as well as over time.
This fundamental principle requires that the actors on our political stage not seize every opportunity to exert total domination over decision processes. Rather, they must operate within a context that cedes advantage that could be taken where to do so would violate the core constitutional purpose of ensuring collaborative governance and restraint in the exercise of power.
Thus, we rebel against — and courts constrain — a legislature that seeks to trim the authority of a governor after an election that has delivered the position to the opposition party. And we would reject any attempt by a legislature to establish a five-year budget that would prevent successor legislators from making important financial decisions on their own in the years ahead. While not expressly “against the law,” to exert power in such a manner violates a basic tenet of electoral democracy and degrades the norm of reciprocity.
Under the same logic, although it would be possible for Republicans in the Senate to push through a vote on President Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court on Monday, to do so would be contrary to the essence of our Constitution: the underlying commitment to power-sharing and the norm of forbearance. Such a vote would violate the unwritten rule that parties don’t press their advantage to the maximum degree possible at any one moment because doing so invites retaliation at the next swing of the political pendulum — and thereby damages the underpinnings of our democracy.
Instead, we ask for a measure of restraint with the promise that similar respect will be offered in return when electoral results flow the other way. The alternative creates deep pools of anger and grievance that ensure that we end up with cycles of a Hatfields-versus-McCoys style of retribution that sow distrust and make cooperative governance impossible.
So, Senate Republicans, please accept this plea to your better angels and to the need to put the good of the nation above short-term party advantage — as President Lincoln did when faced with a similar Supreme Court vacancy in the month before the 1864 election. Please remember your sacred oath to our Constitution — particularly the traditional role of the Senate as the guardians of longer-term interests but also of the need to respect the fundamental norms required to make our democracy function.
For the good of the nation, don’t take the Barrett vote. Uphold America’s undergirding framework of power-sharing and reciprocal forbearance. Lay the foundation for collaborative governance in the years ahead — not political vengeance.
Daniel C. Esty is the Hillhouse Professor at Yale University with appointments at the Yale Law School and the Yale School of the Environment. His recent prize-winning book is “A Better Planet: 40 Big Ideas for a Sustainable Future.”