The only presidential inauguration I’ve attended was Bill Clinton’s first, on Jan. 20, 1993. I took two spare tickets from the office, and brought my 7-year-old daughter, bundled against the cold like a little abominable snowman and old enough, I figured, for a civics lesson.
These were not V.I.P. seats, and we were far back on the National Mall, the proceedings barely visible. What I remember most vividly was what occurred immediately after the ceremony’s conclusion. A helicopter took off noisily from somewhere near the Capitol. I wasn’t sure at first what was happening, but word passed through the crowd that it was Marine One, carrying away the now ex-president George H. W. Bush and his wife, Barbara. Where were they headed — Kennebunkport? Houston? The destination didn’t matter. The helicopter receding into the winter sky was a richly evocative symbol, power transferring peacefully before our eyes from the defeated candidate to the victorious one, the old president to the new. I told my daughter: This is how democracy works.
That image came to mind last week during the third presidential debate. I watched the debate on a hotel television in the company of fellow participants in a conference I was attending. All were lawyers. As the debate proceeded, the group’s attention occasionally drifted, and we chatted a bit. But at Donald Trump’s refusal to say that he would abide by the election results, everyone snapped to attention. Someone had to break the stunned silence, so as the only one in the room with journalism experience, it fell to me to state the obvious: “That’s the headline.”
During this excruciating year, I’ve refrained from writing about the election, content to leave the subject to columnists for whom politics is central to their mandate. But law is central to mine, and since this is my last column before Election Day, I will use it to reflect on the challenge that this political season has posed to the rule of law.
What do I mean by that phrase? The rule of law isn’t readily reduced to a definition; we know it when we see it. It is both a process and an end state: the product not of a list of mandates but of ingrained habits, a collective turn of mind, shared expectations about how a civil society organizes its affairs and resolves its conflicts. We know that rules alone don’t suffice to create or maintain a rule of law; some of the world’s more odious governments have looked beneficent on paper.
The rule of law provides confidence that what is true today will still be true tomorrow. It undergirds the resilience necessary to absorb the inevitable shocks any political system faces. Resilience takes a long time to grow. The European “unity” now fracturing under 21st century strain is a mid-20th century artifact. That’s not very much time. In the United States, we have thought, smugly, that we have all the time in the world. Maybe we don’t.
Consider the Republican-controlled Senate’s response to President Obama’s nomination of Merrick Garland to the Supreme Court, a nomination now nearly eight months old. Having vowed to prevent President Obama from filling the vacancy created by Justice Antonin Scalia’s death, Republican senators have refused to schedule a hearing for Judge Garland, the distinguished chief judge of a major federal appeals court — or, with a few exceptions, even to meet with him and shake his hand. Ten days ago, Senator John McCain raised the stakes, vowing that Republicans would block not only this but any Supreme Court nomination made in the future by a President Hillary Clinton. “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” the Arizona Republican declared in a radio interview.
What was frightening about Senator McCain’s statement wasn’t that he said it. After all, politicians say nutty things all the time. What scared me was . . .