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The Other Y2K Crisis | The Nation

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The Other Y2K Crisis

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The presidential election is sixteen months away, but candidates are already fanning out across the land, garnering dollars and media exposure. Congressional Republicans and Democrats are tailoring legislation to position themselves for next year's campaign. Stephen Gillers argues that now is the time for progressives to start thinking about what they should be doing. We will publish some other views in our next issue.   --The Editors

About the Author

Stephen Gillers
Stephen Gillers teaches legal ethics at New York University School of Law.

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How could two really smart government lawyers authorize torture in arguments that have no foundation in law?

My Y2K nightmare is that Republicans will win the White House and keep control of Congress. The payoff for this trifecta, which Republicans have not won since 1952, will be broad lawmaking (and law-repealing) power and a good chance to name three Supreme Court Justices in the next presidential term. Will that be Bill Clinton's legacy to the rest of us as he moves on to the next chapter of his life? I detect an air of inevitability about it, like a bad movie plot or the gradual revelation of biblical justice. Yes, I know, a lot can happen in the next sixteen months, but that gives me no consolation. Saying a lot can happen is a form of denial. A lot can happen the other way, too. Things may get worse. What we know best is what is true today, and today the future looks bad.

Al Gore and George W. Bush are the probable major-party nominees. Gore exudes competence and decency but lacks magnetism. And however unfair it may be, he is a reminder of the pain Clinton caused the nation. Voters also blame Kenneth Starr, but that doesn't mean they forgive Clinton. Meanwhile, Bush shares Clinton's and Ronald Reagan's knack for enchanting an audience. More soft money will back Bush than Gore. As for hard money (money that counts against federal fundraising limits), in the first six months of 1999, Bush collected a record-breaking $36 million, more than all other Republican contenders combined. And while we may yet hear of escapades in Bush's past, they are likely to look merely naughty next to Clinton's bad conduct in office.

Yes, issues also count, but Bush and Gore are both aiming at the middle. If voters believe the two are close enough and neither seems personally threatening, they will choose the candidate they "feel" is a better leader. A CNN poll puts Bush 11 percentage points ahead of Gore with women voters, notwithstanding Bush's antiabortion position and the 16-point lead among women that Clinton enjoyed over Bob Dole. Issues are complex, but impressions are simple. Unfortunately, Gore comes across as the angelic relative whom parents cite to spur their kids ("Why can't you be more like Cousin Albert?"), while Bush is the easygoing guy next door you can have over for a beer and good stories. These may be unfair stereotypes from popular culture, but isn't that how we package and decode candidates? Political semiotics worked for Clinton twice. The nation chose the charming, if incorrigible, pal over the detached and distant patriarch (President Bush) and the stern and censorious uncle (Bob Dole). Republicans now embrace Bush precisely because he's the candidate from central casting.

In the Senate, Republicans hold a ten-vote majority. Of the thirty-three Senate seats open in 2000, nineteen belong to Republicans. To regain control, Democrats must keep their fourteen seats (including those that New York's Daniel Patrick Moynihan and New Jersey's Frank Lautenberg are vacating) and win six more (or five if they hold the White House). It can be done, but it won't be easy. Charles Cook Jr., editor of The Cook Political Report, counts four Democratic and four Republican seats as "highly vulnerable" and labels twelve of the nineteen GOP seats as safe or probably safe.

The House is in virtual equipoise. The Democrats need a net gain of six seats for a majority. That's more likely to happen. But the Senate is the more important chamber, because it confirms presidential appointments, including Supreme Court Justices.

Three Justices are ripe for retirement during the next presidential term: William Rehnquist will be 77 in 2001, John Paul Stevens will be 81, and Sandra Day O'Connor will be 71. Stevens is the Court's most liberal member. O'Connor is one of its two centrists (the other is Anthony Kennedy), which tells you how far right the Court has moved since the Earl Warren (or even the early Warren Burger) era. While there are no sure bets in Supreme Court nominations, the Republicans are learning how to reduce the risk. Witness Antonin Scalia and Clarence Thomas. With a Senate majority, the next President can alter the Court for decades. Take abortion rights. Rehnquist, Scalia and Thomas are sure votes against it. Stevens is a sure vote for it. O'Connor is a sure vote in some vague middle. If Stevens and O'Connor retire, a Republican President and Senate can strategize the end of Roe v. Wade.

Just as there was no keeping Dole from winning the nomination in 1996, even though he seemed headed for certain defeat, so there seems to be no denying it to Gore in 2000, even if Bill Bradley might be the more formidable candidate. Gore, like Dole, has supposedly "earned" the right to run, whatever that means. Absent serious mistakes, then, which can befall either candidate, we had better recognize that events are moving inexorably toward Republican control of the White House and probably the Senate, and (a roll of the dice here) maybe even the House.

Options for progressives seem few. Do we back Bradley (Gore's only current rival) on the theory that if he beats Gore in several primaries, Gore will have to withdraw? Do we support Gore, as the inevitable nominee, while refusing to let Bush hide behind labels like "compassionate conservative"? Do we concentrate on close Senate and House races, hoping that, whoever wins the White House, Democrats will at least regain Congress? Or do we do something else entirely? Given the accelerated campaign schedule, we don't have much time to act before the Y2K nightmare comes true.

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