Ethics & Public Policy Center

Checking and Balancing

Published in National Review Online on October 17, 2016


The final month of the 2016 election is going about as terribly as this awful year might have led us to expect, don’t you think? Donald Trump and Hillary Clinton are doing their best to affirm the worst opinions voters have of them, and the election seems more than ever like a lose-lose proposition for the country.

The core problem with Trump (though not the only one of course) has always been a character problem. He is unfit for the presidency by virtue of his lack of virtue, and of his intemperate temperament, thuggish bully instincts, unabashed infidelity to all who rely on his word, and staggering lack of focus, discipline, responsibility, and restraint. These are dangerous traits in a decision maker, and a person manifesting them is unlikely to be improved by being given immense power.

As if to prove the point, Trump has spent the past two weeks essentially going mad in public—and in the process recklessly assaulting the legitimacy of our democratic institutions—in response to provocations that involve nowhere near the level of intensity and pressure he would routinely face as president. He has spent this month confirming many of the greatest fears of those intent on keeping him from the presidency.

Hillary Clinton has enormous character problems too, but the deepest of the many problems with her candidacy involve her substantive ambitions—the policies and role of government she wants to advance with the powers of the president and the means by which she seeks to do so. These strike many people as not quite so shocking as Trump’s problems, because they are shared in common with the bulk of contemporary liberals. But as Ramesh Ponnuru and I suggested in NR a few weeks ago, they are more, not less, of a problem for being so.

In that article, we emphasized Hillary’s dangerous approach to the Constitution (though we could easily have added her views on abortion, religious liberty, and much else), and she has emphasized that approach herself in recent weeks. The most prominent instance was probably in the second debate. When she was asked what would be most important to her in selecting Supreme Court justices, Clinton said this:

Thank you. Well, you’re right. This is one of the most important issues in this election. I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench, but, you know, maybe they tried some more cases, they actually understand what people are up against.

Because I think the current court has gone in the wrong direction. And so I would want to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics. Donald doesn’t agree with that.

I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.

Now, Donald has put forth the names of some people that he would consider. And among the ones that he has suggested are people who would reverse Roe v. Wade and reverse marriage equality. I think that would be a terrible mistake and would take us backwards.

I want a Supreme Court that doesn’t always side with corporate interests. I want a Supreme Court that understands because you’re wealthy and you can give more money to something doesn’t mean you have any more rights or should have any more rights than anybody else.

So I have very clear views about what I want to see to kind of change the balance on the Supreme Court.

Pretty much none of this has anything to do with the role that judges should play in our system of government. It is not about how to interpret the Constitution and the laws but about what policies and outcomes to advance. It is the job description of a liberal political activist, and Clinton is not hiding her intentions to appoint liberal political activists to rubber stamp the left’s agenda from the Court.

And when she does hide her intentions, as in speeches delivered to Wall Street firms that she sought to keep hidden until Wikileaks turned them up, she apparently touts open borders throughout the Western hemisphere, among other bright ideas. The people around her, meanwhile, turn out to be about as hostile to religious traditionalists as the most alarmist traditionalists have feared. The case against Clinton, too, has grown stronger and stronger this month.

It has been pretty clear since Trump clinched the Republican nomination in May that our next president would be a disaster, and it is now clearer still. That’s cause for alarm however the election goes. But it should also be cause for focusing on restraining and countering the president, which means it is cause for electing a Republican majority in Congress.

That is a cause that should unite conservatives, because almost all conservatives are protest voters of one type or another in this presidential election. If the very considerable harm Clinton would do is enough for you to overlook Trump’s horrible flaws, you still have to admit that he would need to be constrained and directed by a reasonably conservative congress if possible. If Trump’s manifest unfitness somehow moves you to overlook the damage Hillary would do, you have to acknowledge all the more the need to resist and restrain her. If you think, as I do, that Trump and Clinton are individually unacceptable and for non-commensurable reasons—that he is unfit to be president, she would do great harm as president, and one’s faults do not lessen or counterbalance the other’s and so neither candidate is worthy of affirmation—then you have to acknowledge that one of them will nonetheless be elected over your objections and know all the better that we must have an assertive congress ready to stand in the way of the president’s worst excesses.

Some conservatives think an assertive congress is impossible given today’s Republican Party, but it seems to me that even the highly imperfect Republican congresses of the Obama years prove otherwise. Think of what the Obama era would have involved without the first two years, in which Democrats controlled Congress. For a start: no liberal stimulus, no Obamacare, no Dodd-Frank. This might have yielded a president more willing to compromise with Republicans in these areas, or it would have yielded more gridlock, either of which would have been preferable to what a Democratic president and Congress yielded.

The Obama administration has certainly managed to make mischief since those first two years, but it has been either a direct extension of those early legislative measures or (especially in immigration and environmental regulation) executive hyper-reaching that has remained very contentious and that to various degrees has been restrained by Congress and the courts for now. Clinton could do a lot of damage of this sort, but it is lesser by orders of magnitude than what she could do with a Democratic Congress.

There may even be some reason to think that a meaningful number of voters see this point. The NBC/Wall Street Journal poll released this weekend showed Clinton leading Trump by 11 points (which makes the poll something of a pro-Clinton outlier even in a sea of polling projecting a Clinton win). And yet, as NBC’s write-up of the poll put it, “by a 53 percent-to-40 percent margin, the poll also finds registered voters saying they’d be more likely to support a Republican candidate who will be a check and balance to Hillary Clinton and congressional Democrats, versus a Democratic candidate who will help Clinton and Democrats pass their agenda.”

This year has not been kind to political hopes of any sort. But wherever you come down on the presidential race, a conservative Congress willing and able to check the next president is worth hoping and voting for.

Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center.

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