Remembering The Guardian of the Presidency On President’s Day

On President’s Day, I post my traditional column commemorating the late, great presidency scholar Richard E. Neustadt.  During almost six decades of public service and in academia, until his death in 2003 at the age of 84, Neustadt advised presidents of both parties and their aides, and distilled these experiences in the form of several influential books on presidential leadership and decisionmaking.  Perhaps his biggest influence, however, came from the scores of students (including Al Gore) he mentored at Columbia and Harvard, many of whom went on to careers in public service.  Others (like me!) opted for academia where they schooled subsequent generations of students in Neustadt’s teachings, (and sometimes wrote blogs on the side.)

Interestingly, Neustadt came to academia through a circuitous route that, unfortunately, is rarely used today. After a brief stint in FDR’s Office of Price Administration, followed by a tour in the military, he returned to government as a mid-level career bureaucrat in President Harry Truman’s Bureau of the Budget (BoB) in 1946, gradually working his way up the ranks until he was brought into Truman’s White House in 1950 as a junior-level political aide.  While working in the BoB, Neustadt took time to complete his doctoral dissertation at Harvard (working from Washington), which analyzed the development of the president’s legislative program.  When Truman decided not to run for reelection in 1952, Neustadt faced a career crossroads. With the doctorate in hand, he decided to try his hand at academia.

When he began working his way through the presidency literature to prepare to teach, however, he was struck by just how little these scholarly works had in common with his own experiences under Truman.  They described the presidency in terms of its formal powers, as laid out in the Constitution and subsequent statute, or as an amalgamation of different roles – chief diplomat, chief legislator, etc.  To Neustadt, these formal powers and related roles – while not inconsequential – told only part of the story.  To fully understand what made presidents more or less effective, one had to dig deeper to uncover the sources of the president’s power. With this motivation, he sat down to write Presidential Power, which was first published in 1960 and went on to become the best selling scholarly study of the presidency ever written. Now in its 4th edition, it continues to be assigned in college classrooms around the world (the Portuguese language edition came out three years ago). Neustadt’s argument in Presidential Power is distinctive and I certainly can’t do justice to it here.  But his essential point is that because presidents share power with other actors in the American political system, they can rarely get things done through command or unilateral action. Instead, they need to persuade others that what the President wants done is what they should want done as well, but for their own political and personal interests.  At the most fundamental level that means presidents must bargain. The most effective presidents, then, are those who understand the sources of their bargaining power, and take steps to nurture those sources.

At its core, Presidential Power is a handbook for presidents (and their advisers). It teaches them how to gain, nurture and exercise power. Beyond the subject matter, however, what makes Neustadt’s analysis so fascinating are the illustrations he brings to bear, many drawn from his own personal experiences as an adviser to presidents. Interestingly, the book might have languished on bookstore shelves if not for a fortuitous event: after his election to the presidency in 1960, President-elect John F. Kennedy asked Neustadt to write transition memos to help prepare him for office. More importantly for the sale of Neustadt’s book, however, the president-elect was photographed disembarking from a plane with a copy of Presidential Power clearly visible in his jacket pocket.  Believe me, nothing boosts the sale of a book on the presidency more than a picture of the President reading that book!  (Which reminds me: if you need lessons about leading during an economic depression, President Obama, I’d recommend this book. Don’t forget to get photographed while reading it!)

But it takes more than a president’s endorsement to turn a book into a classic, one that continues to get assigned in presidency courses today, more than two decades after the last edition was issued.  What explains Presidential Power’s staying power? As I have argued elsewhere, Neustadt’s classic work endures because it analyzes the presidency institutionally; presidential power, according to Neustadt, is primarily a function of the Constitutionally-based system of separated institutions sharing power.  That Constitutional grounding makes Neustadt’s analysis of continuing relevance.   And while many subsequent scholars have sought to replace Neustadt’s analysis with one of their own, for the most part they end up making his same points (although they often don’t acknowledge as much) but not nearly as effectively.

After publishing his classic work, Neustadt was subsequently asked to join Kennedy’s White House staff but – with two growing children whom had already endured his absences in his previous White House stint – he opted instead to stay in academia.  He went on to help establish Harvard’s Kennedy School of Government, wrote several more award-winning books, and continued to advise formally or informally every president through Clinton. (Many of his presidential memos were later published in this book.) After the death of Bert, his first wife, he married Shirley Williams, one of the founders of Britain’s Social Democrats Party (and now a Baroness in the House of Lords), which provided still another perspective on executive politics.  He also continued churning out graduate students (I was the last doctoral student whose dissertation committee Neustadt chaired at Harvard.). When I went back to Harvard in 1993 as an assistant professor, my education continued; I lured Neustadt out of semi-retirement to co-teach a graduate seminar on the presidency – an experience that deepened my understanding of the office and taught me to appreciate good scotch.  It was the last course Neustadt taught in Harvard’s Government Department, but he remained active in public life even after retiring from teaching.  Shortly before his death he traveled to Brazil to advise that country’s newly-elected president Lula da Silva.

And so sometime today take time to hoist a glass of your favorite beverage in honor of Richard E. Neustadt, our own Guardian of the Presidency. If you are interested in learning more about him, there’s a wonderful (really!)  book available on Amazon.com edited by Neustadt’s daughter and that blogger guy from Middlebury College (see here). It contains contributions from Doris Kearns Goodwin, Al Gore, Ernie May, Graham Allison, Ted Sorensen, Arthur Schlesinger, Jr., Harrison Wellford, Harvey Fineberg, Jonathan Alter, Chuck Jones, Eric Redman, Beth Neustadt and yours truly.

Here’s to you,  Dick!

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Replacing Scalia: The Political Dimension

The death today of Supreme Court Justice Antonin Scalia is hugely significant in so many ways – legal, political and even cultural – that I hesitate to try to address it in a blog post so soon after his passing. Conservatives lionized him, of course, but even those who disagreed with his ideological leanings recognized that he was brilliant legal thinker whose influence on the Court’s jurisprudence was immense. I will leave it to the legal scholars to document and assess Scalia’s body of work. Instead, I want to briefly present a few very preliminary thoughts on the political implications of this death.

With Scalia’s death, of course, there is a vacancy on the Supreme Court that must be filled. As readers undoubtedly know, under Article II of the Constitution, this means the President “shall nominate, and by and with the advice and consent of the Senate ….judges of the supreme Court… .” Already, however, several Republican presidential candidates, including Ted Cruz and Marco Rubio, as well as Senate Majority Leader Mitch McConnell,  have said Scalia should not be replaced until after the 2016 election. That is, they are opposed to President Obama nominating Scalia’s replacement. In McConnell’s words, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” This is nonsense, of course. The American people already had a voice, and they exercised it in 2012 by reelecting Barack Obama as president knowing full well that he might be asked to nominate replacements to the highest court in the land. Indeed, Obama has every constitutional and political justification for moving ahead and nominating Scalia’s replacement during his remaining time in office. Note that there is plenty of time for the Senate to hold hearings and vote on Obama’s nominee. Since 1975, the average time between the President’s nomination of a Supreme Court judge and a Senate vote is about 67 days. So time is not a factor here.

However, politics is. And while Democrats are correct to argue for Obama’s right to nominate Scalia’s replacement, it is also true that under the Constitution the Senate has the right to vote that nominee down – or not to vote at all. Moreover, the American people, in their collective wisdom, gave Republicans a Senate majority in 2014 after awarding the presidency to Obama two years earlier. So references to the “will of the people” cut both ways here. Keep in mind as well that research suggests Senators may feel a particular obligation to heeding the “will” of their particular state’s constituents, as opposed to that of the nation as a whole.

Much of the increasingly vitriolic back and forth on my twitter feed is centered on what Obama and the Senate should do, as if there is a bedrock legal or philosophical principle that can determine their course of action. This misses the key point: the Supreme Court, like the Presidency and the Senate, is a political institution, and its member are selected in part for political reasons. Viewed in this way, the question is what the President and the Republican-controlled Senate will do, and why. At this early stage, it seems to me pretty obvious that the President will nominate someone to fill Scalia’s seat, and that the Senate will likely vote that nominee down, or not vote at all. Both are in their right to do so.

Note that there is ample historical precedent for the Senate to refuse to vote on a Supreme Court nominee because of its political opposition to the President, as opposed to the nominee. Thus, on strictly partisan lines, the Democratically-controlled Senate “postponed” a vote on President John Quincy Adams’ nomination of John Crittenden in December, 1828. Similarly, three months before he was to step down as President, James Buchanan nominated Jeremiah Black to the Supreme Court, but the Senate voted Black down. In both instances, the Senate was motivated by its desire to let the president-elect fill the vacancy, rather than accede to the wishes of the outgoing president.

The Whig President John Tyler saw five of his six of his Supreme Court nominees rejected in one year – one by a formal vote, and the others when the Senate postponed action. Similarly, Millard Fillmore saw the Senate take no action on two of his Supreme Court nominees, and a vote on a third nominee was postponed indefinitely. Of course, there were extenuating circumstances affecting both Fillmore and Tyler’s nominations. Each had acceded to the presidency on the death of their predecessors, and neither had sufficient political standing to force the Senate’s hand.

In 1866 President Andrew Johnson nominated his Attorney-General Henry Stanbery to the Supreme Court, but the Republican Congress passed legislation decreasing the number of associate justices in the Supreme Court from eight to six, thus effectively eliminating the vacancy that Stanbery would have filled. Again, that action was partly motivated by political opposition to Johnson.

Perhaps the most analogous situation to what Obama faces today, however, occurred during Lyndon Johnson’s presidency. After announcing that he would not run for reelection, LBJ nominated Abe Fortas, a Supreme Court justice, to replace the retiring Chief Justice Earl Warren, and Homer Thornberry was nominated to take Fortas’ seat. When Fortas withdrew after his nomination was filibustered due to ethical issues, however, Thornberry’s nomination was withdrawn from Senate consideration. It was left for Johnson’s successor Richard Nixon to fill Warren’s spot with Warren Burger.

It is possible, of course, that the Senate and President Obama might find a compromise candidate that both can live with, or perhaps they will agree to a “placeholder” candidate who agrees to step down this fall, or who is old enough that both sides agree the person will be a short-term replacement for Scalia. However, I’m skeptical that this will happen. Why settle for half-a-justice, when a full one seems only an election away? At this point both parties have reason to be optimistic that they will control the Presidency come November, and it is not beyond reason to believe that Democrats can retake a Senate majority next fall. Of course, Republicans have reason to believe they will retain their Senate majority.

In short, both parties have an incentive to make the Court fight an election-year issue. I suspect it won’t change the votes of very many partisans, but it will serve to rally the party’s respective bases. It is possible that if the Senate rejects President Obama’s nominee(s), it will garner increasingly negative views in the public’s eye. On the other hand, congressional job approval is already at its nadir. And in any case, Senators care more about their own approval than they do that of the Senate as an institution. For red-state Senators, opposing Obama’s Supreme Court nominee may make good politics.

So I expect Obama to nominate a justice – probably more than once – and I expect the Senate to refuse to confirm that nomination. If there is any bright spot to this process, however, it is to remind the public that the Supreme Court is a political institution composed of justices appointed in part for their political views.

And now, on to tonight’s Republican debate, in which the topic of Scalia’s replacement will certainly come up.