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POLITICAL LEADERS AND THEIR ASSESSMENT

THE GEORGE W. BUSH PRESIDENCY VOLUME I THE CONSTITUTION, POLITICS, AND POLICYMAKING

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POLITICAL LEADERS AND THEIR ASSESSMENT

THE GEORGE W. BUSH PRESIDENCY VOLUME I THE CONSTITUTION, POLITICS, AND POLICYMAKING

MEENA BOSE EDITOR

New York

Copyright © 2016 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. We have partnered with Copyright Clearance Center to make it easy for you to obtain permissions to reuse content from this publication. Simply navigate to this publication’s page on Nova’s website and locate the “Get Permission” button below the title description. This button is linked directly to the title’s permission page on copyright.com. Alternatively, you can visit copyright.com and search by title, ISBN, or ISSN. For further questions about using the service on copyright.com, please contact: Copyright Clearance Center Phone: +1-(978) 750-8400 Fax: +1-(978) 750-4470 E-mail: info@copyright.com. NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers’ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. Additional color graphics may be available in the e-book version of this book.

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Published by Nova Science Publishers, Inc. † New York

CONTENTS Preface

vii Meena Bose

Introduction

xi James P. Pfiffner

Part I: Executive Power and the Constitution in the George W. Bush Presidency Chapter 1

Chapter 2

Law vs. Politics in the Counterterrorism Policies of the George W. Bush Administration: The Sacrifice of One for the Other? Nancy Kassop George W. Bush’s Administrative Presidency: Unilateral Action and the “Unitary Executive Branch” Andrew Rudalevige

1 3

Chapter 3

The Unitary Executive and the Bush Presidency Robert J. Spitzer

Chapter 4

Commentary: Understanding the George W. Bush Presidency Peter Baker and Alan C. Lowe

Part II: Political Leadership in the George W. Bush Presidency

Chapter 5

The Ideological Character of George W. Bush Graham G. Dodds

Chapter 6

Thwarted Realignment: George W. Bush, The Republican Party, and the Elections of 2000-2008 Michael Nelson

Bush and the Faith-Based Initiative: Forgoing the Role of Chief Legislator Donna R. Hoffman and Alison D. Howard

Doing Well vs. Being Great: Comparing the Bush and Obama Doctrines Stanley Renshon

101

Chapter 7

Chapter 8

vi Chapter 9

Contents Commentary: Politics and Policymaking in the George W. Bush Presidency Peter Wehner, John J. DiIulio, Jr. and John Bridgeland

Part III: Policymaking in the George W. Bush Presidency Chapter 10

Chapter 11

Chapter 12

‘We Must Work Every Day to Improve’: The Creation and Evolution of a Homeland Security Infrastructure in the George W. Bush White House David B. Cohen, Dane S. Egli and Terrence M. O’Sullivan

119 131

133

Strategic Staffing after 9/11: George W. Bush’s National Security Czars Justin S. Vaughn

153

George W. Bush, Strategic Justices, and Legacy Building on the U.S. Supreme Court David A. Yalof

165

Chapter 13

True to the Mission: Laura Bush’s Legacy as First Lady Dana Cooper

183

Chapter 14

Commentary: The Leadership of First Lady Laura Bush Anita McBride, Anne-Imelda Radice and Adair Margo

197

List of Contributors

203

Index

207

PREFACE Meena Bose Hofstra University, Hempstead, NY, US

The George W. Bush Presidency transformed American politics and public policy. From economic policies to domestic initiatives to foreign affairs, the legacy of the 43rd presidential administration will endure well into the twenty-first century. Many policy choices sparked heated public debate during the presidency and continue to do so today: tax cuts, education reform, interrogation policies, surveillance of suspected terrorists, military intervention in Afghanistan and Iraq, and the federal response to Hurricane Katrina, to name a few. How these and other decisions will be evaluated historically remains to be seen; for now, perhaps the clearest consensus is that the Bush 43 presidency’s actions were highly controversial – and consequential. The chapters in these three edited volumes provide a comprehensive assessment of the George W. Bush presidency’s leadership and policies.1 They include selected scholarly papers as well as commentary from administration officials and other speakers who participated in Hofstra University’s Conference on the George W. Bush Presidency, March 24-26, 2015.2 (Scholars revised their papers following the conference for the volume, and speakers reviewed their commentary to make stylistic changes and clarifications.) In planning for Hofstra’s twelfth presidential conference, the program committee discussed whether the conference was taking place too close to the Bush 43 presidency. Would the passage of time and ability to view long-term results of policy choices permit more complete analyses? Hofstra decided to move forward with the conference because of the importance of developing an early historical assessment of the presidency that encompasses perspectives from scholars, journalists, and administration officials, and these edited volumes provide a record of those evaluations.

The three volumes are: Meena Bose, ed., The George W. Bush Presidency, Volume I: The Constitution, Politics, and Policymaking (Hauppauge, NY: Nova Science Publishers, 2017); Meena Bose and Richard Himelfarb, eds., The George W. Bush Presidency, Volume II: Domestic Policy (Hauppauge, NY: Nova Science Publishers, 2017); and Meena Bose and Paul Fritz, The George W. Bush Presidency, Volume III: Foreign Policy (Hauppauge, NY: Nova Science Publishers, 2017). For more information on Hofstra’s March 2015 Conference on the George W. Bush Presidency, see the conference website, www.hofstra.edu/gwb.

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The Hofstra presidential conferences, which began in 1982 with a conference on the presidency of Franklin Delano Roosevelt and have examined every presidential administration since then up to George W. Bush, are renowned for producing a unique historical study of the modern presidency. Subsequent analyses will expand our understanding of this presidency and its place in American politics, and the broad, interdisciplinary approach and multiple perspectives in these volumes will inform those analyses. Organizing a conference with more than thirty sessions, approximately 60 scholarly papers, and more than two dozen administration officials and other speakers, is a monumental task, as is developing volumes of selected papers and commentary. For help with conference planning, Hofstra thanks the George W. Bush Presidential Library and Museum, especially Director Alan C. Lowe, who participated in the conference (some of his commentary is in the first volume), as well as the Office of George W. Bush. The administration officials and invited speakers who participated in the conference all made special efforts to join us for the sessions, and Hofstra extends deepest gratitude to them for taking the time to inform the historical record. Hofstra gives special thanks to the Joseph G. Astman Distinguished Conference Scholar, author and New York Times journalist Peter Baker, for sharing his insights on the Bush presidency in multiple conference sessions (some of his commentary is in the first volume); and to Dr. Jeffrey A. Engel, Director of the Center for Presidential History at Southern Methodist University, for indispensable advice in conference planning. Hofstra also thanks Dr. Engel, Dr. Graham C. Dodds, Associate Professor of Political Science at Concordia University, Dr. Martha Joynt Kumar, Director of the White House Transition Project and Professor Emeritus of Political Science at Towson University, and Dr. Shirley Anne Warshaw, Harold G. Evans Chair of Eisenhower Leadership Studies at Gettysburg College, for sharing their insights about leadership and the George W. Bush presidency in the highly instructive closing plenary session of the conference. Many offices and individuals at Hofstra were indispensable to making the conference a success, including, but not limited to: the Board of Trustees; Hofstra Cultural Center; Office of University Relations, Hofstra University Museum; Hofstra University Library Special Collections; President Stuart Rabinowitz; former Provost Herman A. Berliner; Dean of the Hofstra College of Liberal Arts and Sciences Bernard J. Firestone; the conference program committee; faculty who served as panel and forum chairs; and student panelists and hosts. Hofstra conveys its deepest gratitude to Mr. Peter S. Kalikow for establishing the University’s Peter S. Kalikow Chair in Presidential Studies in 2006 and the Peter S. Kalikow Center for the Study of the American Presidency in 2007. Mr. Kalikow inspires students and faculty alike with his dedication to advancing scholarly and public understanding of the American presidency. His continuing encouragement, counsel, and assistance in organizing events such as the Conference on the George W. Bush Presidency are instrumental in developing that understanding. Developing the conference and these three edited volumes would not have been possible without the intellectual contributions, sage advice, and tireless efforts of three individuals at Hofstra: Dr. Rosanna Perotti, chair of the Department of Political Science and a former presidential conference organizer; Dr. Richard Himelfarb, associate conference director and co-editor of the second volume; and Dr. Paul Fritz, coordinator for student hosts for the conference and co-editor of the third volume. Their absolute dedication to informed,

Preface

respectful analysis in presidential studies is a model for scholarly discourse, and their expertise informs each of the three volumes. The Kalikow Center has worked with Nova Science Publishers on several edited volumes, and gives special thanks to Nadya Columbus, Alexandra Columbus, and their fine editorial staff for their continuing dedication to and steadfast support of presidency studies.

INTRODUCTION James P. Pfiffner George Mason University, Fairfax, VA, US

The George W. Bush presidency was historic in many ways -- from the contentious vote count after the 2000 election, to the attacks of 9/11, to the two wars that followed, to the legal battles that ensued, to major reorganizations of the executive branch. This volume brings together excellent scholarship on the most important dimensions of the Bush presidency. Each chapter takes up an important issue in three broad categories: the constitutional authority of the president, President Bush’s political leadership, and policymaking during his administration. The volume is leavened with commentary by those who participated in his administration and those who observed it closely. All of these aspects of the Bush presidency will have far reaching implications for U.S. history and President Bush’s successors President Bush and Vice President Dick Cheney came to office committed to enhancing the constitutional power of the presidency, which they thought had deteriorated since the 1970s. They thought that Congress had illegitimately asserted its constitutional authority and passed a number of laws that unduly constrained the president, such as the War Powers Resolution, the Case Act, and the 1974 Impoundment and Budget Control Act. The attacks of 9/11 provided the opportunity for the administration to counter these legal constraints and enhance executive power. The emergency created by the attacks necessitated immediate executive action, and the fear that more attacks were planned created the opportunity for the president to expand his authority as commander in chief. In Section I of the book, Nancy Kassop analyzes in depth the legal dimensions of the Bush administration’s aggressive assertions of presidential authority, and she argues that they amounted to a direct challenge to the separation of powers created by the Constitution. She carefully dissects the legal arguments of the Office of Legal Counsel in the Justice Department and demonstrates that Bush assertions of executive prerogative went well beyond the assertions of previous presidents and Supreme Court decisions. She emphasizes the avoidance of a regular policy-making process in the White House by Vice President Cheney and the unwillingness of top administration officials to consult with career professionals or even their own top appointees before announcing controversial policies. For example, President Bush established military tribunals without acting through the Uniform Code of Military Justice. She points out that several legal policy decisions had

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to be rescinded and that the Supreme Court reversed some of the assertions of executive power, particularly with respect to the legal rights of suspected terrorists in U.S. custody. She concludes with the ironic observation that if the administration had conducted policymaking along more traditional paths, the administration might have accomplished more of its policy goals and suffered fewer reverses in the separation of powers system. In the next chapter, Robert Spitzer takes up the constitutional theory the administration relied upon, referred to as the “unitary executive.” This approach posits that all executive power in the Constitution was at the command of the president and that any attempt by the other two branches to affect the execution of the law was illegitimate or unconstitutional. Spitzer observes that after World War II, governmental power, especially in national security gravitated to the executive, and he argues that the extreme nature of the Bush administration’s claim to executive authority reversed the original intent of the Framers of the Constitution. He argues that in the Constitution, Congress is supreme; the functions of the other two branches are dependent on Congress. That is, the laws that the judiciary adjudicates are created by Congress and the laws that the president is sworn to execute, are created by Congress. In addition, Congress can remove members of the other two branches, and it funds their activities. In addition to the Bush administration’s assertions of national security powers, Andrew Rudalevige examines its use of unilateral actions, such as executive orders, signing statements, and regulatory review in the domestic policy arena. For example, the Office of Faith Based Initiatives was created in the White House through executive order and regulations were issued to help faith based organizations obtain governmental contracts. He points out that polarization in Congress has made it difficult for presidents to get their policy priorities enacted in law, so they are increasingly tempted to pursue them on their own, through unilateral actions. In his observations, Peter Baker points out that some of the more controversial actions of the Bush administration were due to the dominant character of Vice President Cheney, who came to the office with much more executive and governmental experience than President Bush. Cheney had been White House chief of staff for President Ford, a member of Congress, and Secretary of Defense during the presidency of George H.W. Bush. This deep experience allowed Cheney to play an influential role in policymaking, particularly in national security, but also in some domestic policy areas, early in the administration. But Baker points out that in the second term, President Bush began to distance himself from Cheney’s perspective and began to reject the Vice President’s preferences. This progression moderated policy priorities toward the end of the Bush administration. Alan C. Lowe Director of the George W. Bush Presidential Library and Museum, explains the challenges facing the Bush library and future presidential archives. The revolution in information technology has exponentially increased the volume of records for which presidential libraries are responsible. For instance, the Library now has more than 70 million pages of paper records, but its electronic records dwarf previous collections. The Clinton library has four terabytes of electronic records, whereas the Bush Library has 80 terabytes. Record storage is a major challenge for the Bush Library as it will be for every subsequent president. In Section II, Graham Dodds begins his chapter by examining different approaches to determining a president’s ideology. Although it is obvious that President Bush was conservative, his own characterization of himself as a “compassionate conservative” signaled

Introduction

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that he wanted to distinguish his own approach to conservatism from previous Republican presidents. Bush went from not wanting the United States to engage in nation building before 9/11 to asserting a muscular foreign policy with invasions and occupations of Afghanistan and Iraq. His significant tax cuts and use of his administration to favor Christian organizations with government support fit squarely into his conservative administration. Bush was criticized for undermining some environmental protections, but he was also attacked from the libertarian right as too willing to allow government to grow larger, for instance with the prescription drug entitlement in the Medicare system or the bailout of financial institutions in 2008. Thus Bush was clearly conservative, even though he sponsored some policies that might traditionally be considered liberal, such as the larger federal role in education built into the No Child Left Behind program and his approach to immigration reform. Dodds concludes that the best way to understand Bush’s conservatism is to see him as an “orthodox innovator,” in Stephen Skowronek’s framework. This category depicts a president who is solidly based in his traditional ideology, in Bush’s case, Reagan conservatism, but who contributes some policy innovations that do not fit the traditional mold. Michael Nelson looks at the Bush presidency in the historical context of partisan alignments in the United States. He traces partisan swings from the New Deal coalition of the Democrats that dominated U.S. politics in the mid-twentieth century to the conservative Republican renewal led by President Reagan. That ideological change stemmed from the realignment of the South -- from solidly Democratic to Republican -- that was consolidated by the end of the 20th century. In placing President Bush in this broad sweep of partisan shifts, Nelson concludes that the realignment of voters toward the Republican Party was thwarted by public reaction to some policies of the Bush administration. Despite historic high public approval ratings immediately after 9/11 and his success in the 2004 election, President Bush lost some public support with the deterioration of the war in Iraq as well as his failed campaign to reform the Social Security system. This led to the election of Barack Obama in 2008 rather than to a voting realignment favoring the Republican Party. Donna Hoffman and Alison Howard examine President Bush’s faith-based initiative from the perspective of the president’s legislative and rhetorical leadership. The authors examined President Bush’s public pronouncements advocating this priority with a combination of qualitative analysis and quantitative measures. Although this was clearly a major policy goal of his presidency, the authors conclude that President Bush did not devote the level of rhetorical energy necessary to convince Congress to enact significant portions his faith based policies into law. As a result, he reverted to using his presidential powers to issue several executive orders to achieve his goals, and his public statements on faith based initiatives decreased during his second term. The authors conclude that although President Bush did devote important presidential time and effort, he did not follow through in his rhetoric in a way that ensured that his faith based initiatives were established in law. Stanley Renshon contrasts President Bush’s approach to foreign policy with that of President Obama. He argues that President Bush’s ambition was limited at the beginning of his administration, but after 9/11 he aggressively led the country in his war on terror. He sees President Bush’s confidence as leading to the overthrow of Saddam Hussein’s dictatorship in Iraq and the thwarting of follow-on attacks after 9/11. President Bush sought to assure American primacy in the world through an approach of “assertive realism,” in Renshon’s

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analysis. He put together a “coalition of the willing” to defeat Saddam Hussein and to establish “democratic transformation” in the Middle East. President Obama’s approach to foreign policy was characterized by attempting to transform the United States’ relationship to the rest of the world. Renshon argues, however, that Obama subordinated his foreign policy goals to his domestic policy ambitions. Thus Obama limited U.S. military engagements and emphasized international coalitions and the selective use of armed drones to chip away at terrorist forces. Obama’s ambition was to redeem past U.S. failures, manage the diminished primacy of the United States in the world, and mask U.S. power by embedding it in coalitions. He concludes that President Bush was successful in his aim to protect the country after 9/11 and that he achieved this limited ambition rather than striving for greatness as he argues that President Obama did. The above chapters in Section II are supplemented with reflections of those who participated directly in the Bush White House: Peter Wehner, John DiIulio, and John Bridgeland. In Section III, Cohen, Egli, and O’Sullivan analyze the largest reorganization of the US government since the National Security Act of 1947: the creation of the Department of Homeland Security. Shortly after the 9/11 attacks, President Bush, though executive order, established the Office of homeland Security and the Homeland Security Council, both in the White House. With congressional enthusiasm for creating a cabinet Department of Homeland Security (DHS), the Bush administration took control of the initiative and brought together 22 different agencies employing 200,000 federal workers into the third largest cabinet department in the executive branch. Using interviews with former Bush administration officials, the authors trace the development of the reorganizations from immediately after 9/11 through the end of the Bush administration. They conclude that the greatest value added of DHS lies not in counterterrorism, which is handled by the National Security Council, but in responding to natural disasters, man-made accidents, and public health emergencies. Justin Vaughn takes his focus inside the Bush White House to analyze the important roles played by White House “czars,” that is, White House staffers who help the president coordinate cross-cutting policies in the executive branch. He examines the circumstances surrounding three czars and their roles in the Bush White House: Homeland Security czar Tom Ridge, intelligence czar John Negroponte, and war czar Douglas Lute. These people, in their White House positions, guided the executive branch’s institutional response to the war on terror. Each of these czars faced challenges due to the politics surrounding their roles and the intense pressure of the beginnings of the war on terror. Ridge’s role in the White House was challenged, since he was not confirmed by the Senate; but the Bush administration succumbed to congressional pressure in proposing legislation to create the DHS, with Ridge as secretary, subject to Senate confirmation. The Bush administration was also prodded by the 9/11 Commission Report to create the Office of the Director of National Intelligence with former Ambassador John D. Negroponte at its helm, though the ambiguity of its enabling law limited the authority of the position. The Iraq Study Group report of 2006 recommended greater coordination of U.S. war efforts in Afghanistan, Iraq, and the war on terror more broadly. After several people turned down the position, career Army officer Douglas Lute took the position. Although no individual could successfully coordinate all of U.S. war policy, Lute was effective enough that he was kept on by the succeeding Obama administration.

Introduction

David Yalof examines the factors that presidents take into account in nominating and appointing Supreme Court justices. He argues that often presidents and their advisers look for the immediate policy effect of a new justice in favor of the president’s ideological preferences. Yalof argues, however, that the long-term impact of a justice is often based on his or her collegiality and capacity to think strategically. Getting along with fellow justices, even those with whom one does not agree, is likely to create a longer term impact on the law. In this respect Yalof contrasts the impact on the Court of Justice Antonin Scalia, who was perceived to be more ideological than strategic in his opinions, with Chief Justice John Roberts, who was able to shape the direction of the Court more effectively. He concludes that dramatic reversals of precedent by the Court are liable to be less effective than the gradual shifting of emphasis in the direction the Justice wants to go. Thus Yalof concludes that President Bush’s choices of Chief Justice Roberts and Justice Samuel Alito are more likely to achieve long-term changes in judicial policy than others considered for appointment by President Bush Dana Cooper examines the contributions of Laura Bush to her husband’s presidency as well as her own policy initiatives. She notes that the popular image of Laura Bush is based on her conventional life and conservative upbringing. Thus she is seen as a dedicated primary school teacher and librarian who, after her marriage, chose to focus her efforts on her family. In this mode, she was an asset to her husband’s political aspirations as governor of Texas and president of the United States. But Cooper argues that a closer examination of her activities in the White House reveals a much more active role in important public policy issues. She continued her interests in children, literacy, and learning, but she was also active as a world traveler, even to dangerous places around the globe. She was an advocate for women’s rights, HIV initiatives, health clinics for women, and especially education for girls and women. Cooper concludes that the public image of Laura Bush should be much better informed and take into account the full range of her policy advocacy. Anita McBride adds her insights about Laura Bush, based on her experience in several positions in the White House and State Department. She notes that the First Lady traveled to all 50 states and to 77 countries during her time at the White House. In a very difficult and complex role, Laura Bush managed to balance her family duties with her active policy and advocacy role. McBride’s personal recollections as well as commentary by administration officials Adair Margo and Anne-Imelda Radice, both of whom worked closely with the First Lady, fill out the image of Laura Bush. This fine collection of scholarship about the George W. Bush presidency provides insights about the longer term legacy of President Bush, particularly with respect to the separation of powers. The assertions of presidential power and the use of unilateral actions were not anticipated by the Framers of the Constitution. Since President Obama, a Democrat, continued to use some of Bush’s assertions of presidential power, it is clear that President Bush established important precedents. Thus the Framers were right when they anticipated that executives would seek more power. But they were wrong in assuming that Congress would always counterbalance presidential power with a vigorous defense of their own institutional prerogatives. What the Framers did not foresee was the formation of political parties and the important role they would play in the separation of powers system. Although partisan friction marked American politics and governance up through much of the 20th century, the partisan polarization of the past several decades has greatly exacerbated partisan friction and made the United States less governable. Partisans in Congress consider

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the success the president of their party to be more important than the assertion of congressional prerogatives and will not ally with members of Congress from the other party to assert their mutual institutional prerogatives. Thus President Bush’s legacy of executive assertiveness will likely have lasting effects on twenty-first century governance.

PART I: EXECUTIVE POWER AND THE CONSTITUTION IN THE GEORGE W. BUSH PRESIDENCY

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 1

LAW VS. POLITICS IN THE COUNTERTERRORISM POLICIES OF THE GEORGE W. BUSH ADMINISTRATION: THE SACRIFICE OF ONE FOR THE OTHER? Nancy Kassop State University of New York at New Paltz, New Paltz, NY, US

ABSTRACT The Bush administration’s post-September 11, 2001 counterterrorism policies were the product of a well-conceived strategy to maximize presidential power, based on a legal theory of absolute and exclusive executive authority that tolerated no interference from Congress, the courts or international law, and that was counter to traditional notions of checks and balances. This theory was implemented by excluding from critical policymaking decisions high-ranking administration officials with key institutional responsibilities who were likely to disagree with a tightly-knit group of White House and Department of Justice lawyers. This closed process produced controversial policy decisions that were later withdrawn or scaled back, when their flawed doctrinal underpinnings were publicly revealed and soundly rejected. The paradox is that if the administration had included relevant institutional stakeholders in the initial decisionmaking, who might have cautioned against executive branch overreach, the resulting policies might have garnered broader public support and would have, in fact, strengthened the presidency in legitimate ways, rather than leaving the taint for history of politicized executive branch excesses by this administration. “The White House sought and received the legal advice it wanted and which was contrary to U.S. and international law…the Bush administration formally severed the connection between policy and legal obligation.” William Taft IV, State Department Legal Adviser, 2001-20051

Nancy Kassop

“One of the great tragedies for this (Bush) administration has been the damage caused by its detainee policies – the decision to set up Guantanamo without the involvement of the international community, the issuance of the president’s executive order creating military commissions, aspects of the CIA interrogation program, the conduct of certain renditions, and the decision about the inapplicability of the Geneva Conventions. The most serious error is not any of these decisions individually, or even collectively, but the administration’s inability to change course as the magnitude of the problems caused by these decisions became apparent.” John Bellinger III, Legal Adviser to the NSC, 2001-2004, and State Department Legal Adviser, 2005-20092

“What the hell just happened?” Colin Powell, Secretary of State (2001-2004), upon learning from TV news reports, without any prior knowledge of it, that the president had just signed the November 13, 2001 military order, authorizing military detention and military commissions3

“It’s by no means a picky procedural matter. It is fundamental to advising the president…The staffing process exists to ensure the president receives complete and accurate advice that has been vetted by his most senior advisers, and therefore helps the president avoid mistakes.” Stuart W. Bowen, Jr., Deputy Staff Secretary and Associate White House Counsel (2001-2003), when asked, without any prior knowledge of it, to bring the November 13, 2001 military order, authorizing military detention and military commissions, to the president for his signature without first putting it through the usual vetting (“staffing”) process.4

A lingering legacy since 9/11, right up to the present day, is the common refrain that the country faces an ongoing dilemma over how best to balance liberty with security in a dangerous world. An equally contentious and knotty controversy is whether the counterterrorism policies established during the George W. Bush administration, many of which are still largely in place today, in order to demonstrate unyielding political toughness against a hostile, ruthless and enigmatic enemy, sidestepped the law in the name of “national security.” In short, did politics, anchored in a distinctive theory of absolute and exclusive executive power, trump law? And, even if they did, and even if there may well be a compelling justification for such a detour, is there a point at which policies generated in the face of a critical emergency must ultimately be scaled back, once the immediacy of the crisis has subsided, even if not necessarily ended, lest we live in a state of perpetual emergency and ever-accumulating executive power that defies congressional or judicial oversight? The break between law and politics that surfaced in the post-9/11 counterterrorism policies of the Bush administration was real and consequential: the quotes at the beginning of this chapter are just a few examples of that break, as expressed by those administration officials who were kept out of the loop while crucial decisions were being made. What was at work here was a deliberate approach to policy-making, calculated to promote a concept of executive power that was absolute and exclusive, admitting of no interference or oversight by

Law vs. Politics in the Counterterrorism Policies …

the other two branches of government, and shutting out the voices and views of key institutional stakeholders in the making of national security policy. Former Vice President Cheney freely admitted and stated publicly, many times, that the Bush administration wanted “to leave the presidency stronger than they found it.”5 His formative experiences in the office of the White House Chief of Staff during the administration of President Gerald Ford and as a member of Congress during the Iran-contra inquiry, where he authored the minority report, had ingrained in him a deep disdain and distrust for the coordinate branches of government. He viewed Congress and the federal courts as the main culprits for diminishing and restricting the power of the presidency through such post-Watergate/Vietnam legislation as the War Powers Resolution of 1973, the Budget and Impoundment Control Act of 1974, and the Hughes-Ryan Amendment of the Foreign Assistance Act (1974), and for imposing on presidents increased and unwarranted accountability to Congress through such legislation as the Case-Zablocki Act of 1976, the Ethics in Government Act of 1978, the Presidential Records Act of 1978, and the Foreign Intelligence Surveillance Act of 1978.

GOVERNING WITHOUT CONGRESS, THE COURTS, OR INTERNATIONAL LAW (OR, “A WAR ON CHECKS AND BALANCES, NOT A WAR ON TERROR”) All of these restraints, in Cheney’s opinion, were unconstitutional and unwise interferences with the president’s powers. He considered it the “mission” of the Bush administration to take back for the presidency those powers that Congress had wrested from it over preceding decades. The timing, circumstances and context in which the administration found itself after the terrorist attacks of September 11th could not have been better tailored to Cheney’s pursuit of this project, giving him the pretext for merging theory with practice: to take the theory of exclusive and absolute executive power (the basis for the unitary executive doctrine) and to implement it, in practice. This approach amounted to governing without Congress, the courts or international law or, as one law professor aptly described it, that the Bush administration was waging “not a war on terror but a war on checks and balances.”6 In Cheney’s view, acknowledging a legitimate role for Congress, the courts or international law would only interfere with and obstruct the president’s plans. Instead, through words and deeds, he and his staff 1) determined that they could override or ignore legal restrictions in statutes and treaties; and 2) centralized national security policy-making in a small, tightly-knit group within the White House, shutting out or marginalizing input from other executive branch officials with an essential stake in these policies. No one doubts the emergency nature of this period nor minimizes the excruciatingly heavy responsibility on the shoulders of those charged with protecting the nation. Yes, there was the press of urgency in crafting early responses to the attacks of September 11th, and participants in those decisions emphasize the besieged environment in which they operated: many have noted that they were expecting additional attacks at any moment.7 Even critical national emergencies, though, can still be addressed effectively by the established institutions in our system. Deviating from those structures and those processes, and producing policies by ad hoc, alternate means, can create unnecessary vulnerabilities that will inevitably be

Nancy Kassop

exposed, and, thus, weaken rather than strengthen the very policies essential to the imperative of keeping the nation safe. The policy-making process works optimally when it is the product of healthy deliberation and input from multiple agents who can bring relevant, necessary institutional perspectives and memory to the table, subjecting policy proposals to rigorous scrutiny that can “save” them from embarrassing and costly mistakes later. In fact, this exact scenario unfolded, over time, as many of the most controversial counterterrorism policies devised by the Bush administration were discredited, upon later reflection, or rolled back when challenged in the courts, indicating serious misjudgments and missteps at the very inception of these policies.8 Could these errors have been avoided, and would counterterrorism efforts have been improved, as a consequence? We may never know the answers to those questions. What this chapter attempts to offer is an explanation as to why those errors in judgments and actions arose. That explanation begins with the simple, two-part conclusion noted above: that counterterrorism policy-making in the immediate aftermath of 9/11 was devised by a tiny, secretive handful of lawyers in the White House, and that this group was fueled by an attractive and convenient theory of total executive power in the office of the president. Short-circuiting the routine vetting (i.e., “staffing”) process of policymaking, excluding potentially useful input from other executive branch officials from relevant departments and agencies, and an avowed refusal to acknowledge or permit the typical roles played by coordinate government branches and by decades of international law and practices – these features contributed to policy outcomes later deemed defective, which might have been minimized, if different avenues had been taken at the outset.

THE ROLE OF THE OFFICE OF LEGAL COUNSEL IN THE BUSH ADMINISTRATION At the base of these policies were legal judgments, produced by the Office of Legal Counsel (OLC) in the Department of Justice. The function of this office is to give to the president and executive departments legal advice that is based on their best interpretation of the law: that advice is “typically treated as conclusive and binding within the executive branch” and “constitutes the legal position of the executive branch, unless overruled by the President or the Attorney General.”9 Two OLC opinions, in particular, were singled out for the questionable legal interpretations they espoused, although, they were simply illustrative of and not unique among the full body of legal opinions on counterterrorism policy during the Bush administration. The eventual public release of many of these opinions prompted wide-scale criticism from scholars, commentators and the general public, and, ultimately, led to their full-scale retraction by the Department of Justice. What has come to be known as the now-infamous “torture memo,” was signed by the Assistant Attorney General in charge of OLC, Jay Bybee (though widely acknowledged to have been written by John Yoo), in August 2002, and titled “Memorandum for Alberto R. Gonzales, Counsel to the President. Re: Standards of Conduct for Interrogation under 18 U.S.C. Sec. 2340-2340A.”10 It set forth a very narrow interpretation of the specific interrogation techniques that would meet the legal definition of torture, so as to offer the rationales for 1) employing whatever interrogation techniques were necessary for U.S.

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agencies to procure information from terrorist suspects, and 2) protecting interrogators from criminal prosecution under the War Crimes Act of 1996, an act of Congress that implemented the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, which the U.S. had signed in 1988 under the Reagan administration and the Senate ratified in 1994. The legal and constitutional reasoning that fueled the Bybee/Yoo memo was replete with references to exclusive, absolute and unlimited authority under “the executive power” and the commander-in-chief clauses of Article II of the Constitution. It also advanced the conclusion that Congress may not regulate or in any way interfere with the president’s conduct of the interrogation of terrorist suspects, and, thus, any effort by Congress to do so “would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.”11 It quoted from a 1970 OLC memo by then-Assistant Attorney General William Rehnquist that described the commander-in-chief clause as “an affirmative grant of authority to the President.”12 Moreover, the opinion also asserted that the president was justified in exercising any degree of discretionary power (including the authority to protect interrogators from possible criminal liability) during times of attack under a theory of the nation’s right to selfdefense.13 The other seminal opinion by OLC was authored, also, by John Yoo, in the immediate aftermath of the 9/11 attacks, when the White House sought clarification of its legal authority to act in such emergency circumstances – exactly the type of legal advice that OLC is charged with providing to the president and to other executive branch officials. It was titled “The President’s Constitutional Authority To Conduct Military Operations Against Terrorists and Nations Supporting Them: Memorandum Opinion for the Deputy Counsel to the President, September 25, 2001.”14 Yoo refers often throughout the document to “the President’s plenary authority to use force,” and asserts that the president is “vested with all of ‘the executive power,’ and that “the Constitution secures all federal executive power in the President to insure a unity in purpose and energy in action,” and, finally, that “the centralization of authority in the President alone is particularly crucial in matters of national defense, war and foreign policy where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.”15 He interprets the Authorization for the Use of Military Force (AUMF), passed by Congress on September 14, 2001 and signed into law by the president on September 17, as “narrower than the President’s constitutional authority,” limiting the authority to use force “only to those individuals, groups, or states that planned, authorized committed or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups or states which cannot be determined to have links to the September 11th attacks,” but Yoo adds that “the President’s broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters.”16 A little further on, he repeats this position, reinforcing that “Military actions need not be limited to those individuals, groups or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas…..Neither statute (referring to both the War Powers Resolution and the AUMF), however, can place any limits on the President’s

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determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”17 The scope of authority that these memos place in the hands of the president is completely consistent with the theory of unitary executive power that Vice President Cheney intended to reassert for the office of the presidency. Any high school student who has taken a basic course in American government and politics could tell you that such a theory was soundly rejected in 1787 by the framers of the Constitution, who constructed a blueprint for a government of limited powers, where each branch would monitor the exercise of power by the other two, and would perform “checking and “balancing” functions, when necessary. The notion of an unbounded chief executive, freed from any congressional or judicial oversight, even in emergencies, was simply nowhere in their equation. In these memos, we see the key elements of that theory: 1) Congress has no authority to regulate or set guidelines for the interrogation of terrorist suspects, and any such effort would be deemed automatically an unconstitutional infringement on the total authority bestowed on the president in this realm from the commander-in-chief clause of Article II (the clear premise being that if the president has total and “sole” authority, then, under this theory, no other institution has any); 2) in the September 25th opinion, we see repeated references to the notion that the president has “all” of the executive power, and that executive authority is vested by the Constitution in “the President alone;”18 to the extent that Congress has acted as it did in passing the AUMF on September 14th to authorize the president to use military force, such authority from Congress is convenient when, as here, Congress has provided it, but Yoo presents the “even-if” or fallback argument to cover any circumstances where Congress’s authorization might be absent or insufficient. That “even-if” or fallback argument, Yoo tells us, is that the president gets broad and exclusive authority from the Constitution, anyway, to determine when and against whom to use military force, decisions that the Constitution gives to “the President alone to make:”19 thus, the premise is that Congress’s authority is welcome, but unnecessary, since the president can always rely on Article II commander-in-chief clause authority to accomplish any national security objective, with or without the blessing of Congress.

CRITICISM OF OLC MEMOS Legal academics are entitled to advance unorthodox and novel theories – when writing as professors within their respective academic role. Lawyers working in the capacity as official legal advisors to the U.S. government operate in an entirely different arena and culture: some have described this distinction as the difference between acting as legal advocates (i.e., academics) vs. acting as legal advisors (i.e., government lawyers). Legal advisors have “a professional obligation of candor toward her (the) client.”20 Law professor Kathleen Clark notes that OLC lawyers are subject to the D.C. Rules of Professional Conduct: a comment to Rule 2.1 states that “a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”21 Further, Clark explains:

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….a lawyer may provide advice that is contrary to the weight of authority, spinning out imaginative, even “forward-leaning” legal theories for the client to use. When doing so, however, the candor obligation requires the lawyer to inform the client that the weight of authority is contrary to that advice, and that other legal actors may come to the opposite conclusion. A lawyer who fails to warn a client about the possible illegality of proposed conduct has violated her professional obligations.22

Similarly, nineteen lawyers who served previously in the Office of Legal Counsel in both Democratic and Republican administrations authored a statement, “Principles to Guide the Office of Legal Counsel,” that was sent to Attorney General John Ashcroft in 2004, in which they set forth ten guidelines, culled from years of OLC practices, that they viewed as setting appropriate standards for government lawyers advising the president and the executive branch.23 First among these was that “…OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.”24 Of the many criticisms leveled against the Bybee/Yoo OLC opinion on interrogation techniques (“the torture memo”), the most compelling were: 1) its interpretation of the commander-in-chief’s power over the conduct of interrogations as exclusive, thus, denying any authority to Congress to exercise its very considerable constitutional authority “to make rules for the government and regulation of the land and naval forces” (Article I: 8:14); 2) the omission of any discussion or citing of landmark Supreme Court rulings that are directly relevant to the issue of the scope of the commander-in-chief’s authority (e.g., Youngstown Sheet and Tube Co. v. Sawyer 1952) that would undermine and reject OLC’s argument of absolute and exclusive executive authority; and 3) its dismissal of treaties and international law (e.g., Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment) as applicable law and binding rules to be followed when crafting U.S. national security policies. These criticisms are mirrored in the quotes at the beginning of this paper: 1. William Taft IV’s comment that “the Bush administration formally severed the connection between policy and legal obligation” is, perhaps, the most succinct and direct characterization of that administration’s approach.25 In his sharp rebuke, Taft condemns Bush and Cheney’s White House lawyers for interpreting law in novel ways that supported the administration’s desired policies but that were disconnected from established legal precedent and authority. 2. John Bellinger III highlights the administration’s dismissive approach towards international law and its refusal to engage the international community when devising so many of its controversial policies, where input from such sources at the policy formation stage might have a) identified weaknesses or flaws, b) alerted the administration to the international condemnation from allies that ultimately followed, and, most importantly, c) might have avoided those “costly mistakes.”26 3. Similar conclusions can be deduced from the expressions of frustration and surprise by Colin Powell and Stuart Bowen when each was confronted, without prior

Nancy Kassop knowledge, that the president was about to sign (in Bowen’s case) or had just signed (in Powell’s case) the November 2001 military order authorizing the guidelines for a) military detention of non-U.S. citizen terrorist suspects, and b) military commissions as the judicial setting for trying them.27 Powell was outraged at being closed out of the making of the foundational policies that handed control and prosecution of detainees to the military, and Bowen was taken aback at being told by White House lawyer, Brad Berenson, that the typical administrative branch vetting process was being bypassed here.28 Both of these reactions illustrate the excessively tight, insular process for making the most fundamental counterterrorism policy decisions in ways that deviated starkly from routine governmental processes.

Gellman describes the highly secretive and irregular process used to produce this military order, making end-runs around relevant (and principal) officials at the National Security Council and the Departments of State and Justice. Among those excluded from the decisionmaking process, in addition to Powell, were Assistant to the President for National Security Affairs Condoleezza Rice and her legal adviser, John Bellinger III, and Powell’s legal adviser at the State Department, William Taft IV.29 When Attorney General John Ashcroft heard about the order, indirectly, a few days before it was announced, he requested a meeting with the president (and found himself, instead, with Cheney and the vice president’s counsel, David Addington) to express his displeasure that the Department of Defense, and not Justice, was to have complete control over prosecution of terrorist suspects. When he asked how this decision could have been reached without his participation, Cheney told him that OLC attorney John Yoo had already prepared the legal advice that supported it. Yoo acted under the direction of the Vice President and Addington, and was not authorized to submit his opinion to the attorney general, as routine procedures at the Department of Justice would have required. Instead, Ashcroft was presented with a fait accompli of which he had no prior knowledge: he was understandably livid at this blatant disregard for department protocol, especially, in such a critical matter where Justice’s views would have been unquestionably relevant and necessary.30

REPUDIATION AND RETRACTION OF OLC OPINIONS BY THE DEPARTMENT OF JUSTICE Nothing is more head-snapping than the official repudiation and retraction by the Department of Justice of OLC’s counterterrorism opinions and related memoranda produced from September 2001-January 2009. The unfolding of this walking back of these documents began, first, under Jack Goldsmith, who replaced Jay Bybee as head of OLC in October 2003. By the end of his first two months on the job, Goldsmith recounts that he was struck with “disbelief” by the “deeply flawed” legal arguments in OLC opinions that supported the administration’s counterterrorism programs.31 He said that “the opinions were so much broader and so much more extreme than were necessary to support…the actual interrogation techniques and policies that were being used,”32 and that he worried about “the nature of the analysis in the opinions…there were extravagant and unnecessary claims of presidential power that were, again, wildly overbroad to the tasks at hand and had implications for other

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laws…”33 Moreover, he recognized that the writing in the opinions did not adhere to the expected professional norms of OLC: “They were obviously stretching to reach a result rather than doing a more impassioned analysis;”34 “the opinions lacked the tenor of detachment and caution that usually characterizes OLC work, and that is so central to the legitimacy of OLC.”35 Goldsmith eventually made the judgment that two OLC opinions, one that guided the CIA,36 and the other directed to the Department of Defense,37 that provided legal interpretations of permissible interrogation techniques needed to be withdrawn. He was acutely aware of the extraordinary nature of the act of withdrawing official legal opinions on which government agents had relied for clear guidance. Although rare but not unprecedented for OLC to retract opinions written by a prior administration, Goldsmith has noted that he knew of no instance where an OLC opinion had been overturned within the same administration, “and certainly not on an important national security matter.”38 On December 30, 2004, Goldsmith’s successor and the then-acting head of OLC, Daniel Levin, penned a memorandum to the deputy attorney general that a) announced the withdrawal of the March 14, 2003 opinion, written by Yoo and addressed to the Department of Defense39 (although Goldsmith had advised the Defense Department general counsel, William Haynes II, in December 2003 that the legal advice in that March opinion was flawed and should no longer be relied upon), and b) retracted the August 1, 2002 Bybee/Yoo opinion.40 Four more rounds of withdrawals or warnings to avoid reliance on prior OLC opinions occurred towards the end of the Bush administration in late 2008 and at the start of the Obama administration in early 2009. 1. Steven Bradbury, serving as Acting Assistant Attorney General in charge of OLC from 2005-2009 (never confirmed by the Senate), wrote a “memorandum for the files” on October 6, 2008, advising that “caution should be exercised before relying in any respect” on an October 23, 2001 OLC memorandum from Yoo and Robert Delahunty about the authority for domestic use of the military for law enforcement purposes. The 2001 memo, he wrote, “should not be treated as authoritative for any purpose.”41 2. On January 15, 2009, Bradbury wrote a comprehensive memorandum for the files that supplemented his October 2008 memo, and that offered close analysis of the flawed statements in nine OLC opinions.42 He concluded that “certain propositions stated in several opinions issued by the Office of Legal Counsel in 2001-2003 respecting the allocation of authorities between the President and Congress in matters of war and national security do not reflect the views of this Office. We have previously withdrawn or superseded a number of opinions that depended on one or more of these propositions. …today we explain why these propositions are not consistent with the current views of OLC, and we advise that caution should be exercised before relying in other respects on the remaining opinions identified below.”43 3. On March 2, 2009, Attorney General Eric Holder issued a press release announcing that the Department of Justice was releasing to the public two previously undisclosed OLC memoranda (these were the 2008 and 2009 Bradbury memos) and seven previously undisclosed OLC opinions. Of these seven opinions, five had been

Nancy Kassop included in Bradbury’s January 2009 memo advising caution, while two others showed up on this list for the first time. Holder reiterated Bradbury’s statement that the opinions “no longer reflected the views of OLC” and “should not be treated as authoritative for any purpose.”44 4. On April 15, 2009, Acting Assistant Attorney General in charge of OLC David Barron wrote a memorandum for the attorney general that announced the withdrawal of four OLC opinions for the CIA on interrogation techniques, including the August 1, 2002 Bybee/Yoo opinion, as well as three other opinions by Bradbury from 2005, concluding that these opinions “no longer represent the views of the Office of Legal Counsel.”45 The Barron memo proceeded from President Obama’s January 22, 2009 Executive Order 13491, titled “Ensuring Lawful Interrogations,” which established restrictions on the interrogation methods used by any U.S. government agents. Section 3(c) of EO 13491 ordered that “unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation . . . issued by the Department of Justice between September 11, 2001, and January 20, 2009.”46

CONCLUSION The objective of this chapter was to advance the argument that those charged with providing official legal advice to support the Bush administration’s counterterrorism policies were directed by the White House, through the abandonment of routine government procedures, to frame their legal conclusions on the basis of a theory of executive power that was flawed in its understanding of fundamental constitutional principles. As a consequence, the policies this theory purported to support lost valuable credibility over time, damaged the U.S. reputation abroad, and, paradoxically, resulted in sabotaging their own potential for success, as the administration confronted not only setbacks in the courts and in Congress, but, also, as officials even within the administration recognized the need to pull back and retract earlier legal interpretations by their predecessors that had proven unsupportable and too extreme. The attraction of this theory was that it relieved the administration of any obligation to use routine policy-making processes or to consider itself bound by unwanted and inconvenient restrictions from Congress, the courts or international law, and it enabled policymaking to be centered squarely in the White House under tight control. Those were the “benefits:” little consideration was given to any possible costs. Yet, those costs eventually surfaced, as critics had presumed they would, as the U.S. drew condemnation from its allies for its willingness to disregard international law, for its practices of extraordinary rendition and harsh interrogation techniques amounting to torture, for its policy of indefinite detention without charges, for its domestic warrantless wiretapping, and for bypassing its own civilian court system in favor of a jerry-built one that ran headlong into legal objections that have undermined its ability to operate for the past fourteen years. The underlying point here is that the administration would have been better served – and its policies would have been on a sounder, more defensible and more practicable footing that would have enhanced their long-

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term effectiveness - if it had hewed closer to established legal doctrines rather than contested ones, and if it had made good faith efforts to follow more routine policy-making procedures. So, we come full circle in assessing whether Vice President Cheney’s mission had been “accomplished.” Jack Goldsmith has the final word here, reflecting back on the effect of Supreme Court decisions adverse to the administration’s policies and on the longer-term view by Congress and the courts towards the presidency: …there have been losses in the Supreme Court, and they are losses that are precedents that add up, that are restrictions on presidential power. …there have also been losses to the presidency and to the power of future presidents. There’s no doubt that Congress and the courts are more suspicious and less trustful of the president and the presidency now than they were after 9/11 and that this suspicion of the president will harm future presidencies. I have no doubt about that. So, in some important sense, the White House has not, I think, left the presidency as powerful as it was in 2001 or 2000…47

ENDNOTES Guantanamo Teach-In, videocast of “Guantanamo: How Should We Respond?” Seton Hall University School of Law, October 5, 2006, http://law.shu.edu/guantanamoteachin/. 2 Cullen Murphy and Todd S. Purdum, “Farewell to All That: An Oral History of the Bush White House,” Vanity Fair (December 28, 2008), http://www.vanityfair.com/news/2009/02/bush-oral-history200902. 3 Barton Gellman, Angler: The Cheney Vice Presidency (New York: Penguin Press, 2008), p. 168. 4 Ibid, p. 168. 5 Consider the following quote by Cheney: “…there has been a constant, steady erosion of the prerogatives and the power of the Oval Office and a continual encroachment by Congress…where presidents have given up, if you will important principles. So, the office is weaker than it was 30, 35 years ago. What we’re committed to is to make sure we preserve the office, at least as strong as we found it, for our successors” (Adam Clymer, “Judge Says Cheney Needn’t Give Energy Policy Records to Agency,” New York Times, December 19, 2002, pp. 1, 33). 6 Linda Malone, “International Law in American Courts,” panel at “Guantanamo Bay: The Global Effects of Wrongful Detention, Torture and Unchecked Executive Power,” symposium sponsored by the New York City Law Review, John Jay College of Criminal Justice, New York, March 23, 2007. 7 “Cheney’s Law,” PBS Frontline (2007), http://www.pbs.org/ wgbh/pages/frontline/cheney/ interviews/berenson.html. 8 Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004); and Hamdan v. Rumsfeld, 548 U.S. 557 (2006) were the first three Supreme Court decisions on the merits of the Bush counterterrorism policies (Rumsfeld v. Padilla I, 542 U.S. 426 [2004] was a decision on procedural grounds only). Each one, to varying degrees, ruled in ways that either declared policies unconstitutional (Hamdan) or rejected the administration’s legal position (Rasul), or imposed limits or qualifications on the administration’s interpretation (Hamdi). The Court in Hamdi ruled that although the AUMF provided authority for the government to detain U.S. citizen “enemy combatants” caught on the battlefield, executive detention was subject to “meaningful” review where a detainee would have “a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker” (note Justice O’Connor’s much-quoted pronouncement on the role of judicial review of the executive’s action, even in time of war: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. … Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” 542 U.S. 507, 536 [2004], quoting Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579, at 587 [1952] and Mistretta v. United States, 488 U.S. 361, 380 [1989]); in Rasul, the Court held that federal district courts were authorized by statute States, 488 U.S. 361, 380 [1989]); in Rasul, the Court held that federal district courts were authorized by statute to hear habeas corpus petitions filed by foreign nationals detained at Guantanamo, permitting them to challenge their detention; and in Hamdan, it declared unconstitutional the military commissions that Bush had authorized in his November 2001 military order. In 2008, the Court issued another decision, Boumediene v. Bush, 553 U.S. 723 (2008), where it declared that the 1

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novel process established by the administration (CSRTs) for determining whether Guantanamo detainees were illegal enemy combatants was an insufficient substitute for the traditional privilege of habeas corpus. Taken together, Hamdi, Rasul, Hamdan and Boumediene all represented setbacks for the administration’s legal positions and seminal counterterrorism policies. 9 Randolph Moss, “Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel,” 52 Administrative Law Review, 1303 (2000). 10 Jay S. Bybee, “Memorandum for Alberto R. Gonzales, Counsel to the President. Re: Standards of Conduct for Interrogation under 18 U.S.C. Sec. 2340-2340A,” August 1, 2002. http://www.justice.gov/ sites/default/files/olc/legacy/2010/08/05/memo-gonzales-aug2002.pdf. 11 Ibid (emphasis added). 12 William H. Rehnquist, “Memorandum for Charles W. Colson, Special Counsel to the President: Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries,” May 22, 1970. http://www.justice.gov/sites/default/files/olc/opinions/1970/05/31/op-olc-supp-v001-p0321_0.pdf. 13 Bybee (emphasis added). 14 John Yoo, “The President’s Constitutional Authority To Conduct Military Operations Against Terrorists and Nations Supporting Them: Memorandum Opinion for the Deputy Counsel to the President,” September 25, 2001. http://www.justice.gov/sites/default/ files/olc/opinions/2001/09/31/op-olc-v025-p0188_0.pdf. 15 Ibid (emphasis added). 16 Ibid. 17 Ibid (emphasis added). 18 Ibid (emphasis added). 19 Ibid (emphasis added). 20 Kathleen Clark, “Ethical Issues Raised by the OLC Torture Memorandum,” 1 Journal of National Security Law and Policy, 455, 465 (2005). 21 Ibid, p. 466, note #51. 22 Ibid., p. 467. 23 “Principles To Guide the Office of Legal Counsel,” December 21, 2004. Reprinted in Dawn E. Johnsen, “Faithfully Executing the Laws: Internal Legal Constraints on Executive Power,” 54 UCLA Law Review, 1559, 1603-1611 (2007). 24 Ibid. 25 Guantanamo Teach-In. 26 Murphy and Purdum, “Farewell to All That: An Oral History of the Bush White House.” 27 “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” November 13, 2001, 66 Fed. Reg. 57,833. http://georgewbush-whitehouse.archives.gov/ news/releases /2001/11/20011113-27.html. 28 Gellman, pp. 166-168. 29 Ibid., p. 166. 30 Ibid., pp. 164-165. 31 “Cheney’s Law,” PBS Frontline (2007), http://www.pbs.org/wgbh/pages/frontline/cheney/interviews/goldsmith.html. 32 Ibid. 33 Ibid. 34 Ibid. 35 Jack L. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W.W. Norton and Company, 2007), p. 149. 36 Bybee. 37 John Yoo, “Memorandum for William J. Haynes II, General Counsel of the Department of Defense Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States,” March 14, 2003. http://www.justice.gov/sites/default/ files/olc/legacy/2009/08/24/memo-combatantsoutsideunitedstates.pdf. 38 Goldsmith, p. 146. 39 Yoo, “Memorandum for William J. Haynes II, General Counsel of the Department of Defense Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States.” 40 Daniel Levin, “Definition of Torture Under 18 U.S.C. §§ 2340–2340A,” December 30, 2004, http://www.justice.gov/sites/default/ files/olc/opinions/2004/12/31/op-olc-v028-p0297_ 0.pdf. 41 Bradbury, Steven G., “Memorandum for the Files. Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities,” October 6, 2008, http://www.justice.gov/ sites/default/files/olc/legacy/2009/08/24/ memoolcopiniondomesticusemilitaryforce10062008.pdf; Yoo and Robert J. Delahunty, “Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” October 23, 2001, http://www.justice.gov/sites/default /files/olc/legacy/2009/08/24/memomilitaryforcecombatus10232001.pdf. 42 Steven G. Bradbury, “Memorandum for the Files. Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001,” January 15, 2009, http://www.justice.gov/sites/default/files/olc/legacy/2009/08/24/memostatusolcopinions01152009.pdf.

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Ibid. Eric G. Holder, “Department of Justice Releases Nine Office of Legal Counsel Memoranda and Opinions,” March 2, 2009, http://www.justice.gov/opa/pr/department-justice-releases-nine-office-legal-counsel-memoranda-andopinions. 45 David J. Barron, “Memorandum for the Attorney General. Withdrawal of Office of Legal Counsel CIA Interrogation Opinions,” April 15, 2009, http://www.justice.gov/ sites/default/ files/olc/opinions/2009/04/31/withdrawalofficelegalcounsel_0.pdf. 46 Ibid.; Executive Order 13491, “Ensuring Lawful Interrogations,” The White House, January 22, 2009, http://www.whitehouse.gov/the_ press_office/Ensuring_Lawful_Interrogations. 47 “Cheney’s Law,” PBS Frontline (2007), http://www.pbs.org/wgbh/pages/frontline/cheney/interviews/goldsmith.html. 44

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 2

GEORGE W. BUSH’S ADMINISTRATIVE PRESIDENCY: UNILATERAL ACTION AND THE “UNITARY EXECUTIVE BRANCH” Andrew Rudalevige Bowdoin College, Brunswick, ME, US

ABSTRACT Unilateral administrative action tempts every president -- but it was particularly important to the George W. Bush presidency. An array of tools, including appointments, executive orders, signing statements, regulatory review, directive memoranda, and centralized management were utilized to execute policy in a manner congruent with presidential preferences and the theory of the “unitary executive branch.” This was true in domestic policy as well as in the war on terror, sometimes with controversial results. The Bush administration was often successful in expanding the president’s “zone of autonomy,” but its tactics tended to undercut the consensus and credibility that make America’s separated institutions function smoothly.

“Much of what we would define as policymaking,” the political scientist (and former Executive Office staffer) Richard Nathan observed more than thirty years ago, “is done through the execution of laws in the management process.”1 Nathan concluded that a key element of contemporary presidential power lay in the “administrative presidency,” a toolkit of tactics that help presidents control policy change via managerial mechanisms in the executive branch. Their aim is to exercise what William Howell calls “power without persuasion” – or what Clinton White House staffer Elena Kagan, long before she was Justice Kagan, admiringly termed “presidential administration.”2 President George W. Bush came to the same conclusion. In early 2004, for instance, Bush addressed a friendly crowd of workers from religious organizations. He touted his creation (by executive order) of the White House Office of Faith-Based and Community Initiatives, then turned to a second directive aiding such organizations’ efforts in winning procurement contracts from federal agencies. He had been trying to achieve this by statute, Bush said, but

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“got a little frustrated in Washington because I couldn’t get the bill passed out of the Congress.” He added, rather scornfully, “They were arguing process.” But, no problem. “Congress wouldn’t act, so I signed an executive order. That means I did it on my own.”3 Doing things “on my own” tempts every president -- but it was particularly important to the Bush Administration.4 An array of tools, including executive orders, signing statements, regulatory review, and directive memoranda were utilized to execute policy in a manner congruent with presidential preferences, sometimes with controversial results. This was a matter both of intent and of circumstance. President Bush entered office determined to strengthen the presidency against a series of post-Watergate congressional incursions he felt had weakened the presidency. This belief was wed to an expansive theory of executive authority: even in domestic policy, the president frequently referenced a “unitary executive branch” that should be solely subject to presidential direction and control, whatever Congress might assert. At times, the administration argued that congressional intervention was not only wrongheaded but actually itself unconstitutional. The preference for unilateralism was bolstered by the events of the early 2000s: many of the most salient decisions of the Bush administration were necessarily executive-centered, from the reaction to the terror attacks of September 11, 2001, to the management of Hurricane Katrina, to the attempts to organize post-war Iraq and Afghanistan, to the implementation of massive late-term financial sector bailouts. At the same time, especially as Bush’s term wound on, divided government and partisan polarization made legislative relations ever more difficult. Unilateralism’s appeal was enhanced in both motive and opportunity. One result is that a strengthened administrative presidency is a crucial aspect of the Bush legacy.

THE “IMPERILED” PRESIDENCY AND THE UNITARY EXECUTIVE Article II of the Constitution begins with a seemingly unhampered assignment of authority: “the executive Power,” it says, “shall be vested in a President of the United States of America.” Such a delegation “does not mean some of the executive power,” Supreme Court Justice Antonin Scalia would write two hundred years later, “but all of it.” And as the Court put it in 1959, Congress cannot “supplant the Executive in what exclusively belongs to the Executive.”5 Such is the concise heart of the theory of the “unitary executive,” which beat strong and steady through the Bush administration. Yet it provides a question, not an answer: all of the executive power is “belongs to” the president, but what is the executive power? The Constitution does not define it.6 Its meaning has therefore been left to be worked out in practice through inter-branch contestation over time. Scalia’s comments above came in just such a context, dissenting from a decision that held that the independent counsel’s office set up by Congress to police executive ethics after Watergate was a pragmatic compromise that did not violate the separation of powers. Opponents of the Constitution were fearful of its ambiguity from the start. The pseudonymous anti-Federalist Cato wrote that with the nation’s “political compact inexplicit,” presidents had room to manoeuvre towards monarchy. But Publius in the Federalist complains about the “unfairness of [such] representations,” responding that the president – unlike tyrants throughout history – would be hemmed in by a long list of checks, from veto overrides to treaty ratification to impeachment and removal from office.7 Indeed,

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the presidential office, as strictly defined by the Constitution, is obstructed, rather than omnipotent; “presidential weakness,” as Richard Neustadt observed in his classic book, is “the underlying theme of Presidential Power.”8 Back at the Constitutional Convention, James Wilson of Pennsylvania also downplayed worries about what presidents might do with “the executive power” the new Constitution so vaguely granted: “the only powers he conceived strictly Executive,” James Madison’s notes record, “were those of executing the laws, and appointing officers.” Yet (as Neustadt recognized) presidents have long sought to leverage historical context and their vantage points within the government to overcome the limits on their authority. Over time, executive authority and autonomy have grown as the American national state has grown. And since the 1930s, thanks to Depression, war, globalization, alliances, social movements, and widespread regulatory zeal, that growth has been immense. This makes what Kagan called “directive authority” over the bureaucracy more effective and also more appealing. Indeed, recent presidents have relied on exactly the two functions Wilson identified. Shaping the ways in which laws are executed – and carefully selecting who is to execute those laws – are crucial to presidential power. George W. Bush’s contributions to this development came from the confluence of two firmly-held ideas: that the presidency was weak at the time he took office, and that it should be (in theory and in practice) institutionally strong. The first belief flowed from the recent impeachment of Bush’s predecessor, Bill Clinton – Bush had artfully promised to restore “honor and dignity to the Oval Office” during the 2000 campaign – combined with a series of laws passed nearly thirty years earlier, in the 1970s. Reacting to the “imperial presidency” of the Vietnam/Watergate era, Congress responded with a series of interlaced statutes and procedures designed to strengthen its authority in inter-branch relations. In areas ranging from using force to forcing executive transparency, legislators sought to reshape key policy processes and rein in presidential discretion. President Gerald Ford complained that far from imperial, the presidency had become “imperiled.”9 Likewise, for observers like Vice President Dick Cheney, who entered public life as a Nixon aide and became Ford’s chief of staff, these “concerted efforts to place limits and restrictions on presidential authority” were “misguided” even at the time. “For the 35 years that I’ve been in this town, there’s been a constant, steady erosion of the prerogatives and the powers of the president of the United States, and I don’t want to be a part of that,” he told an interviewer in 2003.10 Cheney’s subsequent boss (whose father, of course, had also been a high-ranking appointee under Nixon and Ford) was himself quite attuned to the strength of the executive office, even before the brutal catalyst of the September 11th terrorist attacks. “The President and Vice President always made clear that a central administration priority was to maintain and expand the President’s formal legal powers,” wrote Jack Goldsmith, who headed the Bush Office of Legal Counsel in the Justice Department. As the president himself put it in early 2002, “I’m not going to let Congress erode the power of the executive branch. I have a duty to protect the executive branch from legislative encroachment. I have an obligation to make sure that the Presidency remains robust.”11 It’s worth noting that Cheney’s timeline was somewhat off. Presidents had pushed back almost immediately against the “resurgence” framework and often found surprisingly little resistance. In some cases, efforts to set legal limits had given statutory sanction to presidential powers exercised only informally, actually strengthening the office. In others Congress itself

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backed away from using the processes it had created to challenge the president, or could not make them work. The shortcomings of the War Powers Resolution (WPR), and the Congressional Budget Act, for instance, have received bountiful scholarly attention. Not every piece of the regime crumbled at once, or forever, of course: still, the main result of the impeachment of Bill Clinton was to kill off the independent counsel statute. It is worth remembering that one 1998 headline – referring to summer airstrikes Clinton ordered – credited him with having perfected “the Art of Go-Alone Governing.”12 In fact, though, that art had room for improvement. When it came to unilateralism, the clarity and scope of the Bush administration’s claims and capacities were new, and they occurred across the spectrum of governance. Given space limitations, this paper will focus largely on domestic “management” issues – and if it seems odd to discuss presidential power in terms of regulatory policy rather than terrorism, with appointments to the Justice Department rather than with Guantanamo Bay, all of these, insofar as they reflect an approach to the use of presidential power and the place of the presidential office in the Constitutional structure, are very much of a piece. The notion of the “unitary executive,” as expanded by the Bush administration, was very consistently applied. Again, unitary executive theory is centered on the idea that executive power vested in the president cannot be infringed upon by other political actors. The implications that flow from this go back to one’s definition of the executive power. For example, the pardon power is clearly a purely executive function in the Constitution. It would be hard to imagine a legitimate intrusion on this power by statute or court ruling.13 Despite the president’s role as chief executive, though, what that means vis-à-vis the executive bureaucracy is hardly so pure – it is complicated enough that it “has haunted the relationship between the president and Congress from the very beginning of their history together.”14 The most impressive scholarly exegesis of the unitary executive concludes that at the executive power must mean “that the president retains supervisory control over all officers exercising executive power.”15 But how far did supervisory control have to extend? Could it overturn a reporting requirement? Could it overturn statutory directive? Did it even mean that large swaths of the regulatory state -populated by independent agencies whose decisions are often intentionally insulated from presidential influence -- are constitutionally problematic? Such a conclusion is appealing to presidents, but goes against Supreme Court decisions that allowed for pragmatic ambiguity in such structural arrangements.16 After all, the bureaucracy was created by Congress in the first place, and agencies’ basic missions are written into the law, subject to legislative overseers and their funding decisions; the Constitution in turn demands that the president “take care that the laws be faithfully executed.” Fidelity in such cases is a contested quality – not far at times from the way the concept rattles around divorce courts. As a 1986 memo by Samuel Alito, then working in the Reagan OLC, asked -- but did not answer -- “what happens when there is a clear conflict between the congressional and presidential understanding? Whose intent controls?”17 The George W. Bush administration answered that question in a now-famous wave of substantive signing statements, appended to bills newly signed into law by the president: 126 statements, challenging an unprecedented 1,139 provisions of law. (This included one hundred and sixteen separate objections to the Consolidated Appropriations Act of 2005 alone.)18 These statements aimed to provide a new boilerplate for bureaucratic control, repeated so frequently as to become routine. “The executive branch shall construe this provision in a

George W. Bush’s Administrative Presidency

manner consistent with the President's exclusive constitutional authority, as head of the unitary executive branch and as Commander in Chief,” was the general idea, here attached to a Homeland Security appropriations act in 2005.19 The legalistic, even formulaic, nature of the language used in asserting executive claims tended to conceal the breadth of their avowal. In late 2006, Bush’s signing statement to an act regulating atomic energy cooperation between the U.S. and India claimed that because Congress could not “purpor[t] to establish U.S. policy with respect to various international affairs matters,” he would consider the law’s ban on the transfer to India of certain nuclear materials to be merely “advisory.”20 Again, the legitimacy of that claim depends on how plenary and exclusive one feels is the president’s authority in foreign policy. But treating the law as “advisory” aroused particular controversy in late 2005, of course, when Bush asserted that he would construe the Detainee Treatment Act’s ban against “cruel, inhuman, or degrading treatment or punishment” of prisoners captured in the war on terror “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”21 That claim was not limited to foreign policy or the war powers. Across every substantive realm, Congress only “purported” to act; the president had, as a matter of fact, “Constitutional authority to supervise the unitary executive branch.” What that meant was not formulaic, despite the bureaucrat-ese: it meant centralized direction of what the departments and agencies did, what qualifications their personnel held, what information they released, and with whom they communicated. Where necessary, presidential preferences in these regards were intended to override the language of the law he had just signed. As Bush staffer Brad Berenson observed, referring to powerful Cheney aide David Addington and his role in systematizing signing statements, such efforts served to “unite two of Addington’s passions. One is executive power. And the other is the inner alleyways of bureaucratic combat. It’s a way to advance executive power through those inner alleyways.”22 A second element of the unitary executive theory swelled to wall off those alleyways further. This was a new stress on exclusivity: the assertion that the scope of the executive power was defined entirely by the president. If (a) executive power was the indivisible purview of the president; and (b) the president defined what that executive power actually was, it was a short jump to the conclusion that Congress could not infringe legislatively on the president’s preferences, where they flowed from his (self-defined) constitutional authority. As Justice Scalia had noted in Morrison, any statute that constrained the president’s “exclusive control” over a “purely executive” power must be invalid. This was crystal clear after the September 11 attacks. When Congress passed a sweeping Authorization for the Use of Military Force (AUMF) that fall, the OLC said this was nice, but unnecessary: It is clear that Congress’s power to declare war does not constrain the President’s independent and plenary constitutional authority over the use of military force…. [W]e think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond [to 9/11]…. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those… that participated in the attacks on the World Trade Center and the Pentagon…23

In keeping with that logic, President Bush, in short order, unilaterally approved a wiretapping program that allowed the National Security Agency (NSA) to by-pass the warrant

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requirements of FISA; designated and detained hundreds of “unlawful enemy combatants,” including American citizens arrested within the U.S.; issued orders limiting the applicability of the Geneva Conventions and setting up a system of military tribunals; and approved interrogation techniques that many thought constituted torture prohibited both by treaty obligation and U.S. law. Much of this was kept secret at the time. In each case, the action was justified as flowing from battlefield exigency – the battlefield in this war was, literally, everywhere -- and the executive power itself. When the NSA initiative was revealed in late 2005, the administration argued that the president had both inherent and statutory power to order such wiretaps. The Justice Department claimed in a lengthy justification of the program submitted to Congress in early 2006, that “the NSA activities are supported by the President’s well-recognized inherent constitutional authority of Commander in Chief ….”24 And thus, Congress’s actions might even be unconstitutional: “in order to respect the President’s inherent constitutional authority to manage a military campaign,” one report proclaimed, “[the laws against torture] as well as any other potentially applicable statute must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”25 Hence the signing statement noted above. Still, recall that Scalia’s view of exclusivity, when applied to the independent counsel statute, received only Scalia’s own endorsement on the Court. When applied to foreign policy – i.e., by the Curtiss-Wright case – it attracted much sceptical attention.26 As such its elevation to administration doctrine disturbed even oft-sympathetic scholars like the OLC’s Goldsmith, who would later write that “when one concludes that Congress is disabled from controlling the President… respect for separation of powers demands a full consideration of competing congressional and judicial prerogatives” which did not always occur.27 It is important not to read too much into signing statements alone, at least in terms of their substantive impact. They are a claim, not a final outcome, and a GAO examination of the fiscal 2006 appropriations bills found mixed results with regards to their effect on the way statutory provisions were implemented.28 But as a systematic claim of presidential power, they are important, as the post 9/11 claims reinforce: the administration “waved around the vesting clause like a talisman,” as one observer later put it.29 The same theory underwrote the rest of the Bush administrative strategy. Complementary methods also sought to insure bureaucratic responsiveness, as the Bush team showed great skill and discipline in upgrading the managerial resources its predecessors had bequeathed.

PEOPLE, AND PROCESS It is worth digressing at least briefly into the evolution of those resources. The creation of the administrative state did not take place at a single moment – the Civil War and its aftermath, the Progressive Era, and especially the New Deal and its programmatic articulation through the 1960s provide major developments. But in terms of the “administrative presidency” as a strategy, we might do worse than to start with Richard Nixon’s efforts to gain control over what he saw (probably for good reason) as a recalcitrant permanent bureaucracy.30 The strategy comprised many familiar tactics: an effort to centralize regulatory review in the Executive Office of the President (EOP); to direct executive branch implementation through such tools as signing statements, executive orders, and fiscal impoundment; and to build a “counterbureaucracy” in the White House, a large staff that

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could lengthen the president’s reach into different policy arenas (e.g., via the new Domestic Council). The so-called Responsiveness Project of the first term sought to ensure the “use of the available federal machinery,” as White House counsel John Dean put it, to push the president’s agenda (and “to screw our political enemies.”)31 In the second term, this was complemented by a push to make appointments that would allow “Nixon loyalists” to “retake” the departments.32 But given that the low-level appointees of the first term, put in place by cabinet members, were “all but impossible to dislodge,” Nixon aide Martin Anderson would later conclude that “Nixon lost his opportunity to govern before he started.”33 Richard Nathan, who worked in Nixon’s OMB, thus summed this up as a “plot that failed.” But Ronald Reagan, learning from Nixon’s difficulties in this area, and helped by some of Nixon’s staff (like Anderson), would help the plot thicken. This led to a “sea change” in the administrative presidency.34 For example, Reagan successfully institutionalized centralized review of agency regulations in the Office of Management and Budget.35 Reagan also learned from Nixon’s belated efforts at coordinating executive branch appointments, adopting early the credo “personnel is policy” and stressing the need for “ideological fortitude” in dealing with departmental inertia.36 The Reagan team systematically removed every holdover from the Carter administration and centrally vetted appointees at both the cabinet and subcabinet level for ideological purity.37 Where Nixon had occasionally issued administrative orders attempting to ensure statutes were implemented in a manner congenial to presidential preferences, Reagan and his successors did so far more systematically, as the doctrine of the unitary executive took shape as what one participant called “the gospel according to OLC.”38 The general idea was to be vigilant against what one Office of Legal Counsel opinion termed “common legislative encroachments on executive authority”; the battle over the legislative veto in 1983 (leading to INS v. Chadha) was one example.39 George H.W. Bush continued many of these initiatives,40 and Bill Clinton took them still further. His OLC urged upon general counsels throughout the government the “obligation” of the executive branch to highlight and fight back against separation of powers issues arising from legislative “micromanagement…. in as forceful and principled a way as possible…”41 Clinton’s personnel office mirrored Reagan’s in declaring that “these [lower-level positions] are Bill Clinton’s, and he appoints them.”42 Meanwhile, Clinton developed a new set of tactics designed not to restrain agency production of regulation (as the Reagan and Bush OIRA operation had tended to do) but to stimulate it. “Presidential control of administration, in critical respects, expanded dramatically during the Clinton years, making the regulatory activity of the executive branch agencies more and more an extension of the President's own policy and political agenda,” Kagan later wrote. “…[A] self-conscious and central object of the White House was to devise, direct, and/or finally announce administrative actions -regulations, guidance, enforcement strategies, and reports -- to showcase and advance presidential policies.”43 One particular emphasis was on the use of executive memoranda to prod agency rule-making. By Kagan’s count, Clinton issued more than a hundred of these directives, compared to fewer than 15 in the preceding Reagan-Bush years.44 Thus, George W. Bush inherited a robust set of administrative tools from his immediate predecessors – in the spheres of both people, and process. Given the motivations arising from theory, his interpretation of inter-branch history, and the external shocks facing the administration, he had no hesitation in using them.

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People: The President’s DNA From the outset of the Bush administration, great care was taken to install presidential loyalists across, and deep within, the executive branch.45 The transition (and then presidential personnel office) director, Clay Johnson, was charged with finding appointees who were competent but also loyal to presidential preferences. Johnson himself clearly fit that bill; he had ties to the president extending back to prep school, and had served a similar vetting role in Bush’s governorship. The idea, as noted above, was to make the far-flung executive branch more immediately responsive to presidential preferences, ensuring that core programmatic functions received consistent support across the government. As chief of staff Andrew Card told an interviewer, “I made sure our communications team is not just a team in the White House. It is a communications team for the executive branch of government. Our legal team is a legal team for the government.”46 Thus key positions within each department and agency received special scrutiny: not just the secretary at the top of the pyramid, but the deputy secretary (who often handles departmental administration), the general counsel, the legislative liaison, and the head of the press office. After Cabinet members were selected they were given a choice of subordinates already vetted by the White House personnel and political teams. In short, as one staffer later put it, the president sought to “implant his DNA throughout the government” – and he did so systematically.47 The administration’s original set of appointees came partly from Texas, of course – and more than a third had worked on the campaign -- but even more so from Washington, D.C.: some forty-three percent had worked for President George H.W. Bush. Another twenty percent came from a trade association or lobby firm – the Interior Department, for example, included new officials who had lobbied for mining, cattle, and oil and gas development interests.48 Such appointments indicated the importance the new president vested in regulatory policy, with an eye, most often, towards deregulation. When senators (relatively rarely) objected to a given appointment, a recess appointment was often utilized to by-pass the confirmation process.49 Over time, there was attention to the “farm team” as well – White House staff (such as Margaret Spellings, to Education, and Alberto Gonzales, to Justice) were sent to serve in the Cabinet departments, and younger staff were given increasing responsibility within the White House. As with his predecessors, Bush focused his ideologically-oriented appointments on agencies he considered ideologically distant to gain a foothold in their decision-making processes.50 At the same time, he sought to make important structural changes to the federal civil service. New personnel systems were created in the new Department of Homeland Security and within the Department of Defense, greatly enhancing executive flexibility over pay, performance, and discipline for nearly a million federal employees. The politicization process extended even to the General Services Administration – the normally non-partisan agency that deals with cleaning federal buildings and the motor pool. The GSA’s head would attract unwelcome public attention after asking the White House what her organization could do “to help our candidates” in 2008.51 Journalist Charlie Savage detailed the more systematic genetic modification of the Civil Rights Division within the Department of Justice, perceived as a bastion of liberal careerists: first, changing hiring procedures to shut out civil service input, then restoring that influence once the makeup (and thus the preferences) of the civil service itself had been shifted.52 In another wing of Justice

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controversy erupted over the dismissal of a number of U.S. Attorneys alleged to be “underperforming,” instead of being what one administration official called “loyal Bushies.” When Congress sought to investigate, the White House refused to allow officials to testify on the matter. When lawmakers threatened charges of contempt, the administration replied that since prosecutors reported hierarchically to the president, he could mandate they not pursue such charges, and none were proffered.53 None of this meant pushback never occurred. Most famous, perhaps, was a showdown in March 2004 between Justice and White House officials over the legality of the NSA’s warrantless surveillance program.54 Top White House aides went to the Attorney Generals hospital room to pressure him to sign off on continuing the program. He refused. The president then continued the program on his own authority: “I decide what the law is in the executive branch,” he said.55 But as many as a dozen high-ranking Justice appointees, including the director of the FBI and the Acting Attorney General, James Comey, threatened to resign over the matter. The President, facing a potential political disaster, allowed DOJ to rework the program to their legal satisfaction. (In the end, most of it remained in place.)

Managerial Process No matter how many political appointees are housed in a given department, they are a small minority of the whole. The Environmental Protection Agency, for example, had 64 appointees in 2004 – but nearly 18,000 employees, leaving those appointees a rather expansive span of command.56 Agency control can rarely be obtained purely by fiat in any case.57 Thus the White House also strengthened its ability to monitor and manage agency behaviour through procedural means. One early agenda item in this regard came during the transition period, when a group was tasked with reviewing all extant executive orders, as well as memoranda, proclamations, and other presidential directives.58 The task force made recommendations about whether to retain, revoke, or amend them, drawing on both political and substantive arguments were raised. The “Mexico City Policy” on foreign aid and family planning, put in place in the Reagan-Bush years but reversed by Clinton, was tasked as something to restore on “1st day,” as were orders (e.g., E.O. 12836) dealing with union labor on federal contracts. Examining Clinton’s executive order (E.O. 13132) dealing with federalism the group urged “reinstate Reagan E.O. [in] Week 1.” On regulatory planning and review, “Cheney will lead.” Others were trickier. An order dealing with disabilities in the workplace (E.O. 13186) “would be politically difficult to revoke … -- it would have been nice if President-elect Bush had the opportunity to issue this E.O., not President Clinton.” A Clinton order extending specific protections against workplace discrimination to gay and lesbian federal workers was tabbed as something to “revoke and replace,” since social conservatives would see it as “approval of the gay lifestyle.” In the end, though, the order stayed in place. However, and intriguingly, federal workers’ unions and LGBT interest groups soon argued that the new administration was not enforcing the order, and that the Bush appointee heading the office charged with doing so had removed relevant materials from the agency’s website.59 Rules and their enforcement extended in other directions as well. As noted above, the OMB, through its Office of Information and Regulatory Affairs (OIRA), had subjected proposed regulations to centralized review since the early 1980s, but this cost-benefit analysis

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was given renewed rigor by new OIRA head John Graham. Graham took a strict line on the scientific claims made by agencies, rejecting them when they did not meet OMB standards of “quality, objectivity, utility, and integrity.” Critics complained instead that OMB was ignoring agency expertise and rejecting conclusions that did not match the administration’s policy preferences.60 Later, when the administration worried that regulatory clearance was being evaded by agencies’ issuance of “guidance documents” that laid out statutory interpretations without actually engaging the formal rulemaking process, the president issued an executive order on “regulatory planning and review” that included guidance documents within OIRA’s purview. The new order also emphasized that regulation should address a specific “market failure.” Clinton had required agencies to designate a “Regulatory Policy Officer”; the new Bush order required that officer to be a presidential appointee, and dictated that unless it were directly authorized by the agency head, “no rulemaking shall commence nor be included” in agency regulatory plans without that officer’s approval.61 OMB’s extant arsenal of oversight over agency management was also upgraded by the August 2001 President’s Management Agenda (PMA). The PMA aimed to improve government performance in five areas: Human Capital, Competitive Sourcing, EGovernment, Financial Management, and Budget and Performance Integration. In the FY2003 budget OMB graded each major government program as “effective” or “ineffective,” and gave each agency overall management grades for of the five dimensions. These grades were like stoplights: “green” indicated full marks. Most grades were poor; indeed, more than three-quarters were “red” or failing, and as of September 30, 2002, the National Science Foundation was the only government agency with any green lights in its column. By June 2003 several agencies had at least managed to move to yellow; by March 2004, more green lights were scattered across the document. Some agencies, however, notably the Department of Housing and Urban Development, remained wholly red. Added to this in the FY2004 budget and beyond was more detailed analysis of selected programs within each departmental jurisdiction. “This budget makes an unprecedented effort to assess the effectiveness of specific federal programs,” Bush’s budget message claimed. A questionnaire entitled the Program Assessment Rating Tool (PART) was used to assess each program. Again, many programs fell short – only six percent of federal programs rated were deemed “effective,” with another 24% “moderately effective.” For more than half, the rating was “results not demonstrated.” In both cases, the veiled (or not so veiled) threat to agencies was that programs not meeting effectiveness benchmarks were prime targets for reductions in funding – or for the second main approach stressed by the Bush OMB, privatization. One study did find a small but significant correlation between higher PART scores and higher budget requests by the administration – as well as less robust evidence that programs associated with Democratic administrations received consistently smaller funding recommendations.62 By most accounts, agencies paid closer and more sustained attention to PART, and PMA generally, than to most of the management reform efforts that have periodically gripped Washington, partly because the president took a clear personal interest in asking agency heads about their progress on these issues – especially about their “red lights.”63

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Centralization In these ways the White House hoped to stem agency activism before it made its way up Pennsylvania Avenue. As a backstop, though, presidential staffers energetically involved themselves in a wide range of agency activities that threatened to diverge from presidential preferences on policy. A variety of scientific groups charged this meant that ideology trumped research in areas ranging from climate change to workplace safety standards to the evaluation of toxic chemicals. One Environmental Protection Agency regional administrator was apparently ousted in 2008 for her aggressive enforcement of dioxin clean-up laws; and after the Supreme Court ruled that the EPA could regulate carbon dioxide emissions from auto tailpipes under the 1970 Clean Air Act, the White House refused to accept the agency’s memorandum reporting its decision to do so. EOP staff even weighed in on a Commerce Department measure seeking to lower maritime speed limits in shipping lanes populated by right whales.64 A flood of new regulations were issued after the September 11 attacks, and then again as the administration prepared to leave office in early 2009. Examining the executive order clearance files from 2001-04 gives an additional sense of the ways in which the EOP rode herd on the formulation process.65 In contrast with prior administrations, the White House-based policy councils (DPC, NEC, NSC, and briefly HSC) were the key point of contact with OMB, which continued its long-standing job of gathering government-wide comment on proposed orders, proclamations, and executive memoranda. The increasing size of government (to include a new Office and then Department of Homeland Security during the Bush years) meant that between 20-40 agencies and entities had to be consulted about possible orders. But some clearly had more sway than others. The Office of the Vice President, again through the offices of David Addington, was careful of any implications orders might have for presidential power. In August 2001 (thus, before 9/11), asked to comment on a proposed order creating a board to coordinate government policy with regards to IT “critical infrastructure,” Addington responded with eight singlespaced pages of revisions. “The proposal to have the Board Chair report to three people,” he grumbled, “…is essentially a proposal that the Board Chair report to no one.” His suggestions streamlined the board membership and sought to maintain the broadest degree of presidential discretion with regards to its advising processes. Few details were overlooked. In February 2003, for instance, on an otherwise fairly trivial order dealing with medals to be issued by the armed services in conjunction with the war on terror, Addington urged that “nothing” in the order “be construed for any purpose as… fixing the dates of initiation or termination of armed hostilities between the United States and terrorists of global reach.” In short, Bush officials aggressively combined centralization and politicization in a way that extended control of bureaucratic outputs and kept extra-executive input to a minimum. As one thorough study of the EPA suggests, the combination of appointments and centralized rulemaking did in fact decrease enforcement actions by the EPA.66 An additional tool was the control of information, within and between the branches, which went far beyond the regulatory arena. Decision making was tightly held within the administration, eliminating layers of potential dissent.67 And externally, from the outset, the White House staked out aggressive ground on issues of executive privilege, refusing to release records pertaining to Vice President Cheney’s energy task force to the Government Accountability Office (GAO) and issuing administrative orders that would both restrict access to federal documents requested through FOIA and those governed by the Presidential Records

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Act.68 The energy task force court case provided a telling summary of the administration’s attitude towards the other branches of government. The efforts of Congress and the courts to gather information on White House proceedings, argued the solicitor general, amounted to “unwarranted intrusion” into “vital Executive Branch functions.” Instead, the Constitution allowed the president “a zone of autonomy”69 – a zone whose boundaries would be determined by the president himself, but which clearly lay in newly occupied interbranch territory. The president did not, of course, get everything he wanted. As Krause and Dupay observe, “although Congress suffers from well noted collective action problems, presidents suffer internal executive branch coordination problems of their own.”70 There will be slippage between the demands voiced in the Oval Office and the action taken in a San Diego field office. But the Bush administration tested the limits of the tactics that might reduce that gap.

CONCLUSION Having entered the Oval Office determined to strengthen its autonomy vis-à-vis legislative constraints – and, crucially, to extend its control over the behaviour of the executive branch more generally -- President Bush took the precedents his predecessors left him, extended them, and bequeathed to his successor a stronger office in institutional terms. Despite his very different personality and stated philosophy (especially during the 2008 campaign), President Obama has used many of the instruments he inherited, and made his own additions to the presidential toolbox.71 As Bush OIRA head John Graham noted later, “executive action… is one of the president’s most powerful and versatile tools. It is especially important in a polarized setting when legislative reform is unrealistic but Congress is too divided to block the president’s executive action.”72 The rise of the “unitary executive” as a justification for unilateral action, shrugging off or disavowing the legitimacy of any constraints imposed by the other branches of government, achieved impressive short-term results. And with the “vision thing” in overabundance, the Bush administration could make a coherent case that carrying out that vision required careful discipline. Its centralized management presupposed suspicion for its agenda by the risk-averse experts in the departments, and sought to overcome their recalcitrance by blunt force. Bureaucratic pushback – by the EPA, or the military Judge Advocate General’s (JAG) corps dealing with Guantanamo detainees, or even (eventually) the Justice Department -- merely reinforced the Oval Office view that outside actors could not be trusted unless controlled. The Bush administration and its legal craftsmen pushed forth their theories of executive power in good faith: they felt that only by enhancing energy in the executive could the nation meet the threats it faced. And the growth of executive responsibility is in some ways a natural and even laudable development. One cannot provide direction to an enormous nation, with an enormous national executive establishment, with enormous public expectations, while denying the authority necessary to meet those needs. A globalized, polarized, terrorized world seems to call out for endowing leadership sufficient to match its powers to the tasks at hand. As Alexander Hamilton long ago foresaw, unity would create “energy” in the executive: a leader thus endowed can make quick decisions, in secrecy if necessary, and put them into action with dispatch.73 Congress is much better at stopping things than at running them.

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At the same time, though, the Bush administration’s good faith did not always lead to good works. Its insistence on unilateralism, and on its infallibility, forfeited much of the consensus and credibility that make it possible for America’s separated institutions to function smoothly. Rather ironically, Bush ran the risk of weakening the authority of the presidency, at least the office’s moral authority. For in the end, despite the doctrine of “unitarianism,” the Constitution is devoutly trinitarian. In Federalist #49, James Madison addressed the issue of inter-branch interaction head-on in observing that “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”74 But in assessing the Bush administration, even Calabresi and Yoo worried about an “unduly vigorous view of presidential power that expanded far beyond the logical boundaries of the unitary executive.” This was especially true when actions were undertaken in secret – undermining one core argument of a unified executive going back to the Federalist: public accountability.75 Finally, while the notion of a “unitary executive” makes no predictions about its underlying advising process – i.e., where presidential preferences might originate – the Bush years made clear that centralized control does not always lead to positive substantive results. Its failures, when they occurred, were ultimately not of imagination but of implementation. When orders flowed down without sufficient information flowing up, their vision was clear but their requirements sometimes problematic.76 Post-war Iraq, contractor spending, the bank bailout, and the response to Hurricane Katrina seized the headlines in this regard, but the footnotes are telling too. “On September 11th, there were only eight fluent Arabic-speaking agents in the FBI,” Lawrence Wright observed in early 2008. “Now there are nine.”77

ENDNOTES 1

Richard Nathan, The Administrative Presidency (New York: Macmillan, 1983), p. 82. William Howell, Power without Persuasion (Princeton, NJ: Princeton University Press, 2003); Elena Kagan, “Presidential Administration,” Harvard Law Review, vol. 114 (2001), p. 2246. 3 “President’s Remarks at Faith-Based and Community Initiatives Conference,” Office of the White House Press Secretary, March 3, 2004, emphasis added. See also Executive Orders 13199 and 13279. 4 Unless otherwise specified or clear from the context, “Bush” or “Bush administration” will be used in this paper to refer to George W. Bush and his administration, 2001-2009. 5 Scalia, dissent in Morrison v. Olson, 487 U.S. 654 (1988), emphasis added; Barenblatt v. United States, 360 U.S. 109 (1959) 6 Indeed, as Edward Corwin lamented, Article II is “the most loosely drawn chapter” in that notably vague document. Corwin, The President: Office and Powers, 5th rev. ed. (New York: NYU Press, 1984), p. 3. 7 See ‘Cato,’ Letter V (November 22, 1787); Hamilton, Federalist #69. 8 Richard E. Neustadt, Presidential Power and the Modern Presidents (New York: Free Press, 1990), p. ix. 9 Andrew Rudalevige, The New Imperial Presidency: Renewing Presidential Power after Watergate (Ann Arbor: University of Michigan Press, 2005), Ch. 4; James Sundquist, The Decline and Resurgence of Congress (Washington, DC: Brookings Institution, 1981). Ford quoted in Rudalevige, p. 7. 10 NBC interview of January 27, 2003, in Tom Curry, “Executive Privilege Again at Issue,” MSNBC.com, February 1, 2003. 11 “President Bush Holds Press Conference,” Weekly Compilation of Presidential Documents, March 13, 2002, p. 411; Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W.W. Norton, 2007), p. 132. 12 Francine Kiefer, “Clinton Perfects the Art of Go-Alone Governing,” Christian Science Monitor, July 24, 1998, p. 3; see also David Gray Adler, “Clinton in Context,” in The Presidency and the Law: The Clinton Legacy, edited by Adler and Michael A. Genovese (Lawrence: University Press of Kansas, 2002). 13 The Supreme Court held in 2015 that the diplomatic recognition power is similar. See Zivotofsky v. Kerry. 2

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Francis Rourke, E. “Whose Bureaucracy Is This, Anyway?” PS: Political Science and Politics, vol. 26 (December 1993), p. 687. 15 Steven G. Calabresi. and Kevin H. Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary,” Harvard Law Review, vol. 105 (1992), p. 1215; Jeffrey Rosen, “Power of One,” New Republic, July 24, 2006. See, more generally, Steven G. Calabresi and Christopher S. Yoo, A History of the Unitary Executive (New Haven, CT: Yale University Press, 2008). 16 See, e.g., Morrison v. Olson, op. cit.; Humphrey’s Executor v. United States, 295 U.S. 602 (1935) 17 Samuel A. Alito, Jr, to Litigation Strategy Working Group, “Using Presidential Signing Statements to Make Fuller Use of the President’s Constitutionally Assigned Role in the Process of Enacting Law.” National Archives II, Record Group 60, Files of Stephen Galebach, Accession 060-89-269, Box 6, “SG/Litigation Strategy Working Group.” 18 Figures from Table 2, Christopher Kelley and Bryan Marshall, “Going it Alone: The Politics of Signing Statements from Reagan to Bush II,” Social Science Quarterly, vol. 91 (March 2010), pp. 168-87; see also Joel Aberbach, “Supplying the Defect of Better Motives? The Bush II Administration and the Constitutional System,” in The George W. Bush Legacy, edited by Colin Campbell et al. (Washington, DC: CQ Press, 2007), pp. 116-20; Charlie Savage, Takeover (Boston: Little, Brown, 2007), Ch. 10. 19 “Statement on Signing the Department of Homeland Security Appropriations Act, 2006,” Office of the White House Press Secretary, October 18, 2005. 20 “President’s Statement on H.R. 5682,” Office of the White House Press Secretary, December 18, 2006. 21 “President’s Statement on Signing of H.R. 2863,” Office of the White House Press Secretary, December 30, 2005. 22 Quoted in Savage, Takeover, 236. It is worth noting that the Reagan staff thinking about this issue did anticipate the potential for a broader impact. Ralph Tarr, acting head of OLC, suggested in 1985 that signing statements were “presently underutilized and could become far more important as a tool of Presidential management of the agencies….” See Savage, Takeover, 233. 23 Office of Legal Counsel, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” September 25, 2001, available at http://www.usdoj.gov/olc/ warpowers925.htm. 24 U.S. Department of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President, January 19, 2006. 25 U.S. Department of Defense, “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, April 4, 2003, p. 21 and Section III generally. See also U.S. Department of Justice, “Re: Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A,” Office of Legal Counsel, August 1, 2002. 26 See, e.g., Louis Fisher, “Presidential Inherent Power: The ‘Sole Organ’ Doctrine,” Presidential Studies Quarterly, vol. 37 (March 2007), pp. 139-52. 27 Goldsmith, Terror Presidency, 149. 28 “Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts,” letter from Gary L. Kepplinger, General Counsel to GAO, to Rep. John Conyers and Sen. Robert Byrd, reference B-308603, June 18, 2007. 29 Barton Gellman, Angler: The Cheney Vice Presidency (New York: Penguin, 2008), p. 324. 30 Richard Nathan, Administrative Presidency and The Plot that Failed (New York: Wiley, 1975); Andrew Rudalevige, “The Plot that Thickened,” paper presented to the annual meeting of the American Political Science Association, August 2006; Robert V. Percival, “Presidential Management of the Administrative State,” Duke Law Journal, vol. 51, (2001), pp. 963-1013. For a look at earlier developments, see Stephen Skowronek, Building a New American State (New York: Cambridge University Press, 1982). 31 Quoted in Rudalevige, New Imperial Presidency, p. 64. 32 Memo to the President, “The Second Administration Team: A Concept,” 1972, p. 6. Frederick Malek papers, Hoover Institution, Stanford, CA. 33 Martin Anderson, Revolution: The Reagan Legacy, expanded ed. (Stanford, CA: Hoover Institution Press, 1990), p. 195. 34 Kagan, “Presidential Administration,” p. 2277. 35 Nathan, Plot That Failed; William F. West, “The Institutionalization of Regulatory Review: Organizational Stability and Neutral Competence at OIRA,” Presidential Studies Quarterly, vol. 35 (March 2005), pp. 76-93. 36 Thomas, J. Weko. The Politicizing Presidency (Lawrence: University Press of Kansas, 1994), p. 89; Don Moran to Ed Harper, no title, 26 December 1981, National Archives II, Record Group 51 [OMB Files], Deputy Director’s Subject Files: Ed Harper, 1981-82 (FRC 51-82-50), Box 3, “Reorganization.” 37 Dick Kirschten, “White House Strategy,” National Journal, February 21, 1981, p. 302; Anderson, Revolution, pp. 193-205; Andrew Rudalevige, “The President and the Cabinet,” in The Presidency and the Political System, 8th ed., edited by Michael Nelson (Washington, DC: CQ Press, 2006). 14

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Samuel Alito, quoted in Jess Bravin, “Judge Alito’s View of the Presidency: Expansive Powers,” Wall Street Journal, January 5, 2006, A1. For a discussion of signing statements in this period and in general, see Savage, Takeover, Ch. 10. 39 Common Legislative Encroachments on Executive Branch Authority, 13 Op. Off. Legal Counsel 248 (1989). The legislative veto was termed by Attorney General William French Smith, pre-Chadha, a “major danger to the independence and authority of the Executive branch.” See Rudalevige, “Plot that Thickened,” 15-16. 40 Charles Tiefer, The Semi-Sovereign Presidency: The Bush Administration’s Strategy for Governing Without Congress (Boulder, CO: Westview Press, 1994). 41 Office of Legal Counsel, “The Constitutional Separation of Powers Between the President and Congress,” May 7, 1996. 42 Quoted in Weko, Politicizing Presidency, p. 124. See more generally David E. Lewis, “Personnel is Policy,” in President George W. Bush’s Influence over Bureaucracy and Policy, edited by Colin Provost and Paul Teske (New York: Palgrave Macmillan, 2009). 43 Kagan, “Presidential Administration,” p. 2248. 44 Kagan, “Presidential Administration,” pp. 2290-95. But such memoranda are notoriously hard to track: see Greg Korte, “Obama Issues Executive Orders by Another Name,” USA Today, December 16, 2014. 45 Sheryl Gay Stolberg, “Bush Friends, Loyal and Texan, Remain a Force,” New York Times (February 21, 2007); and see Lewis, “Personnel is Policy”; John Burke, Becoming President: The Bush Transition, 2000-2003 (Boulder, CO: Lynne Rienner, 2004). 46 Martha Joynt Kumar, “Recruiting and Organizing the White House Staff,” in The White House World: Transitions, Organization, and Office Operations, edited by Kumar and Terry Sullivan (College Station: Texas A&M Press, 2003), p. 368. 47 “DNA” quote from Mike Allen, “Bush to Change Economic Team,” Washington Post, November 29, 2004, A1. See also Andrew Rudalevige, “‘The Decider’: Issue Management and the Bush White House,” in The George W. Bush Legacy, edited by Campbell et al.; James A. Barnes, “Selecting the Players,” NationalJournal.com, June 25, 2001; Shirley Anne Warshaw, “The Administrative Strategies of President George W. Bush,” Extensions: Journal of the Legislative Studies Section (Spring 2006), pp. 19-20. 48 James A. Barnes. “Bush’s Insiders,” National Journal, June 23, 2001; Warshaw, “Administrative Strategies,” p. 20. 49 Henry B. Hogue. and Maureen Bearden. Recess Appointments Made by President George W. Bush, January 20, 2001-January 31, 2008, Report RL33310, Congressional Research Service, 2008. The strategy sufficiently angered Senate Majority Leader Harry Reid that he kept the Senate in continuous pro forma sessions over the Thanksgiving holiday in 2007 in order to prevent recess appointments. This practice continued into the Obama administration and led to the Supreme Court decision in NLRB v. Noel Canning (2014) invalidating certain Obama recess appointments. 50 See Lewis, “Personnel is Policy.” 51 Robert O’Harrow, Jr., and Scott Higham, “Doan Ends Her Stormy Tenure as GSA Chief,” Washington Post, May 1, 2008. 52 Savage, Takeover, pp. 294-300. The idea, as one careerist who left in 2005 said, was “to leave behind a bureaucracy that approached civil rights the same way the political appointees did” (p. 300). 53 Dan Eggen and Paul Kane, “Justice Department Would Have Kept ‘Loyal’ Prosecutors,” Washington Post, March 16, 2007; Dan Eggen and Amy Goldstein, “Broader Privilege Claimed in Firings,” Washington Post, July 20, 2007. The claim rested on a Reagan-era Justice Department opinion, but the closer parallel was the president’s argument in 1974’s U.S. v. Nixon. 54 Peter Baker, Days of Fire (New York: Doubleday, 2013), pp. 314-19; Barton Gellman, Angler (New York: Penguin, 2008), pp. 299-326. 55 Gellman, Angler, pp. 318. 56 Lewis, “Personnel is Policy,” Table 2.1. 57 George Krause and Brent Dupay, “Coordinated Action and the Limits of Presidential Control over the Bureaucracy,” in Bush’s Influence, edited by Provost and Teske. 58 Cited documents in this paragraph and the next are from the Records of the OMB General Counsel 2001-2009, “Review of Presidential Directives,” Accession #051-11-0012, Boxes 1-2, Washington National Records Center, Suitland, Maryland. 59 See, e.g., Fact Sheet on the Employment Non-Discrimination Act, American Federation of Government Employees, 2007 (available at http://afgecouncil222.com/Lg/ 07afgeissueprs7.pdf). 60 Amy Goldstein and Sarah Cohen, “Bush Forces a Shift in Regulatory Thurst,” Washington Post, August 15, 2004, p. A1; Rick Weiss, “‘Data Quality’ Law is Nemesis of Regulation,” Washington Post, August 16, 2004, p. A1. 61 Executive Order 13422, issued January 18, 2007. 62 John, Gilmour. and David, Lewis. ““Does Performance Budgeting Work? An Examination of the Office of Management and Budget’s PART Scores,” Public Administration Review, vol. 66 (September/October 2006), pp. 742-52. 38

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Jonathan, D. Breul. “Three Bush Management Reform Initiatives,” Public Administration Review, vol. 67 (January/February 2007), pp. 21-26; author’s interviews with OMB staff. Generally, see Paul C. Light, Tides of Reform (New Haven, CT: Yale University Press, 1997). 64 “Toxic Chemicals,” testimony of John Stephenson of the Governmental Accountability Agency before the Senate Committee on Environment and Public Works, April 29, 2008; “EPA Official Ousted While Fighting Dow,” Chicago Tribune, May 2, 2008; Felicity Barringer, “White House Refused to Open Pollutants E-Mail,” New York Times, June 25, 2008; documents posted by Rep. Henry Waxman, Chair of the House Oversight Committee, “Responses to 16 November Questions from White House on Right Whale Ship Strike Reduction Final Rule.” More generally, see Christopher Lee, “Scientists Report Political Interference,” Washington Post, April 24, 2008. 65 This paragraph is drawn from OMB materials held in Accession 51-06-0013 [OMB: OGC: Ex. Orders/Proclamations 2001-2004] and Accession 051-05-0006 [EO/Proclamations 2004], Washington National Records Center, Suitland, MD. 66 Colin Provost, Brian J. Gerber, and Mark Pickup, “Flying Under the Radar? Political Control and Bureaucratic Resistance in the Bush Environmental Protection Agency,” in Bush’s Influence, edited by Provost and Teske. 67 Rudalevige, “The Decider.” 68 At one stage the Vice President sought to shift records from the first category to the (more restrictive) second, arguing that the visitor logs to his residence should be considered presidential, rather than Secret Service, records, and thus immune from FOIA. A federal judge rejected this argument in late 2007. 69 Linda Greenhouse, “Administration Says ‘Zone of Autonomy’ Justifies Its Secrecy on Energy Task Force,” New York Times, April 25, 2004. 70 Krause. and Dupay. “Coordinated Action,” 100. 71 Though it is worth noting that Obama disavowed many of the OLC opinions regarding the war on terror, especially those dealing with interrogation techniques. 72 John, D. Graham. Bush on the Home Front (Bloomington: Indiana University Press, 2010), p. 328. 73 Hamilton, Federalist #70. 74 And despite Alexander Hamilton’s role as patron saint of executive Unitarians, see his similar conclusions in Federalist #66. 75 Calabresi and Yoo, Unitary Executive, pp. 411-12; and see Hamilton, Federalist #70. 76 See, e.g., Rudalevige, “The Decider.” 77 Lawrence Wright, “The Spymaster,” The New Yorker, January 21, 2008, p. 56. 63

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 3

THE UNITARY EXECUTIVE AND THE BUSH PRESIDENCY Robert J. Spitzer SUNY Cortland, Cortland, NY, US

ABSTRACT While most past presidents have attempted to grab more power, the Unitary theory of power implemented in the second Bush presidency set up a game-changing paradigm that upends any conventional notion of the separation of powers, and the role of the presidency within it. The Unitary theory, which proffers a constitutional view of presidential power that claims vast and expansive unilateral powers for the chief executive (sometimes referred to as “Article II on steroids”), is predicated on an Originalist reading. Yet an Originalist view of the Constitution leads to legislative supremacy, not the unitary executive. The modern activist presidency arguably exceeds the founders’ notions of presidential power, but that view at least continues to operate with the checks and balances system. The Unitary theory abandons checks and balances.

The second Bush presidency has made at least two major contributions to the study of the American presidency: first, it has put the tenets of the separation of powers/checks and balances system front and center in contemporary political analysis; second, it has put the lie to the notion that constitutional powers and institutional relations are less than central to any complete understanding of the contemporary presidency. After all, the George W. Bush presidency’s overarching goal and master plan, spanning the gamut of routine day-to-day activities, on the one hand, to the administration’s most important policy goals, on the other, was to redefine and enlarge the president’s constitutional powers consonant with its singularly expansive view of the office. In this respect alone, it prompts students of the presidency to examine, and re-examine, the roots of this institution, the constitutional structure in which it is embedded, and the nature of executive power. The purpose of this article is to explicate the Bush presidency’s constitutional vision for the presidency and its consequences for the institution. It begins with an account of the

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legislative-dominant separation of powers system established by the Constitution’s founders, the evolution of that system toward the modern strong presidency established in the twentieth century, and the interrelationship of presidential constitutional powers with political powers acquired by presidents viewed from the perspective of the highly influential presidency scholar Richard Neustadt. These developments are then considered in the light of the Bush administration’s executive governance theory, known as the unitary executive theory. I argue that while most past presidents have attempted to grab more power, the unitary theory sets up a game-changing paradigm in presidential power that may spell the beginning of the end of the separation of powers system as it has functioned in the nation’s first two centuries.

THE FOUNDERS’ CONSTITUTION AND THE CHANGING SEPARATION OF POWERS As political scientist Louis Fisher once noted, “To study one branch of government in isolation from the others is usually an exercise in make-believe.”1 In a governing system composed of “separated institutions sharing powers,”2 the essence of governance is found in the friction points between governing institutions. So any understanding of the future of the American presidency must incorporate both its historic arc, and its interrelations with the other branches, but most importantly with Congress. These Constitution-based institutional interrelations become even more important with the contemporary juridical and political mania for constitutional “originalism.” These features converge at a fundamental asymmetry underlying the separation of powers: that the legislative branch was designed to be the first, most important, and most powerful branch among the three. If this comes as a revelation to twenty-first century Americans, it was not to those of the eighteenth century where, as John Locke noted, “In all cases whilst the government subsists, the legislative power is the supreme power. . .the legislative must needs be the supreme, and all other powers in any members or parts of the society [are] derived from and subordinate to it.”3 The American three-branch federal system was emphatically not one of three co-equal branches, but was to be legislative-centered.4 James Madison’s dictum on this was clear enough when he proclaimed that “In republican government, the legislative authority necessarily predominates.”5 What the political scientist Clinton Rossiter referred to decades ago as the “fact of legislative primacy”6 arises from the constitutional document itself, where “Congress is granted a breathtaking array of powers. . .the bulk of governmental authority as the Founders understood it.”7 This principle applies to foreign as well as domestic powers.8 Yet legislative dominance rests not only with the lengthy laundry list of powers granted to it in Article I, but in its power relationship with the other two branches of government. The legislature’s power to make laws is, first, government’s most important function. “Without prior legislation,” historian Garry Wills notes, “there is nothing to be executed or adjudicated. The other two functions [executive and judicial] necessarily serve the first.”9 Beyond this, congressional pre-eminence is reflected in the trump cards that institution is granted in the Constitution. Congress can remove from office members of the other two branches through impeachment; neither the executive nor the judicial has any reciprocal removal power over members of Congress. Congress establishes and provides pay for the

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members of the other branches; determines the structures of the other two branches, encompassing the cabinet departments and other agencies of the Executive branch, as well as all “inferior Courts as the Congress may from time to time ordain and establish” below the Supreme Court, and the number of judges that serve on all federal courts, including the nation’s highest court. As the Constitution says in Article I, section 8, Congress not only has an express grant of power to “make all laws which shall be necessary and proper for carrying into Execution the foregoing powers,” but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Congress also has final say in the veto process, as well as in the approval of treaties and executive appointments by the Senate. Congress amends the Constitution with approval of the states, a process in which the president has no legal role. In the checks-and-balances system, each branch could indeed claim checks on the others, but those of Congress were final trumps. As Wills concludes: “No matter what the sequence of action. . .Congress always gets the last say (if it wants it).”10 Further evidence of legislative dominance arising from the Constitution was the functional relationship between the branches in the nation’s ensuing century. Those founders who participated in governance operated and behaved in a manner consistent with legislative supremacy.11 By the middle of the nineteenth century, the imperatives of the American “patronage state,” so delineated by political scientist Theodore J. Lowi, further favored “congressional dominance,” such that Lowi dubbed this period as one typified by nearparliamentary governance.12 Writing in 1884, Woodrow Wilson identified “Congress as the central and predominant power of the system,” adding “unquestionably, the predominant and controlling force, the centre and source of all motive and of all regulative power, is Congress.”13 Yet it is not only true, but a truism, of the three-branch relationship that it has been dynamic, not static, in American political development. To be sure, the modern three-branch relationship would appear to little resemble anything like a legislative-dominant system (and one might certainly argue that such a development was not only necessary, but desirable), but that is a consequence of over two hundred years of institutional evolution. No further evidence need be marshaled than to cite the reality of contemporary executive branch dominance in national governance. The proposition that presidential power has significantly increased in the last two centuries, yielding a “modern strong presidency” in the twentieth century is one of the most well established and widely accepted tenets of the institutional presidency and American governance.14 Many factors account for the legislative-executive reversal of fortunes, beginning, but not ending with, the limiting specificity of Congress’s Article I powers as compared with the delimiting vagueness of presidential Article II powers. A second, if seldom noticed factor related to these powers is that Congress’s just-described final constitutional checks have proven in practice to be less than utilitarian. Take for example the power of impeachment. Drawn directly from British law, by the seventeenth century “impeachment by the British House of Commons and trial by the House of Lords had evolved into the standard means of enforcing responsibility of the King’s ministers to Parliament.”15 Yet Congress’s impeachment power has functioning nothing like a “standard means of enforcing responsibility” in American governance. Since 1789, the power has been used rarely. The House of Representatives has approved impeachment charges in only seventeen instances: thirteen times against federal judges, twice against presidents, once

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against a senator (the Senate later decided that expulsion was the proper means to remove senators), and once against a cabinet member. Of the fourteen that went to trial in the Senate, seven were convicted and seven acquitted. In the case of the two presidents brought to trial in the Senate, Andrew Johnson and Bill Clinton, neither episode provides confidence that impeachment was or is an effective check on the presidency, or that it was properly used.16 A check so rarely used can scarcely be considered an effective check, even if our founders contemplated otherwise. A similar, if less drastic argument can be made regarding Congress’s veto override power. Yes, congressional override gives it the final word, but its successful employment is rare. Of the approximately 2500 bills vetoed by presidents from Washington to Barack Obama, Congress’s rate of successful override is only about 7 percent (although it rises to about 19 percent for major legislation). When the power of presidential veto threats and vetorelated bargaining is added in to the calculus, actual practice supports the conclusion that the veto is a potent and important presidential tool, but that the prospect of successful override, for the most part, is not.17 In law, Congress gets the final say; in fact, it’s generally the president. The realities of constitutional checks and balances lend credence to Thomas Jefferson’s prescient prediction, penned in a letter to James Madison in 1789: “The tyranny of the legislatures is the most formidable dread at present, and will be for many years. That of the executive will come in its turn; but it will be at a remote period.”18 Power is the presidential narcotic, and the rise of the modern strong presidency is, as noted, one of the most well established axioms of American politics. The rise of presidential power was made possible both by constitutional ambiguity and by the limited efficacy of Congress’s final checks, but was effectuated primarily by the acquisition and exercise of political powers and power resources. No clearer statement of the limitations of the president’s constitutional powers, and the importance of political resources, has been advanced than that of political scientist Richard Neustadt.

THE RISE AND DEMISE OF THE NEUSTADT PRESIDENCY The dominant paradigm of the last four decades (or at least until recent years) for understanding the presidency19 has been that of Richard Neustadt’s classic Presidential Power. First published in 1960, Neustadt sought to turn the focus of presidential power away from formal and institutional powers, and toward informal political powers and resources. In Neustadt’s view, the president’s formal, constitutional powers were spare, indeed. The reality of presidential governance, in Neustadt’s analysis, is neither command nor gallant heroic leadership, but “the power to bargain”20 – to plead, cajole, jawbone, entreat, negotiate. As this implies, presidents in Neustadt’s view operate from a position of relative political weakness, not strength. Neustadt argues that presidents who rely on constitutional/command authority will fail, even if they succeed. As Neustadt concluded: “Command is but a method of persuasion, not a substitute, and not a method suitable for everyday employment.”21 Successful presidents, he argues, must master the persuasive arts; command powers are incompatible with an effective presidency in the modern era. In its essence, effective presidents use carrots, not sticks; honey, not vinegar. Why? Writing in a

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new Preface to his book in 1989, Neustadt stated his argument this way: “even a ‘strong’ President is weak. . . .weak remains the word with which to start.”22 To be sure, Neustadt’s analysis of presidential power has been subject to substantial criticism and debate,23 in part precisely because of the extent to which it underestimates the importance of formal and constitutional powers. Still, as political scientist William Howell asserts, “Neustadt sets the terms by which every student of American politics has come to understand presidential power in the modern era.”24 The limitations of the Neustadt paradigm are nowhere more clearly evident than in explaining and understanding the second Bush Presidency. Neustadt’s analysis was necessary because the president’s formal powers, by themselves, are indeed inadequate to explain modern presidential power. Yet Neustadt’s analysis seems utterly irrelevant to explaining the presidency of George W. Bush. This irrelevancy arises from the central tenet of Bush’s approach to executive power: its reliance on a full-blown constitutional theory, the unitary theory of executive power. To pose the matter somewhat differently, if modern presidents typically seek more power for themselves and the office, is the Bush presidency really any different in its quest for executive powers than its predecessors? I believe the answer to be yes. Activist presidents from recent decades, such as Franklin D. Roosevelt and Lyndon Johnson, clearly expanded executive power. Yet they did so in a primarily Neustadtian manner, both in employing traditional persuasion, bargaining and other political tools to advance their substantial and ambitious policy agendas, and in avoiding grandiose claims to Constitution-based powers as the basis for their actions. Neither Roosevelt nor Johnson pretended that the New Deal or the Great Society was the just-discovered fulfillment of the Constitution’s founders’ conception of their office. Yet the essence of President Bush’s unitary power claims are just of this sort – namely, the fulfillment or realization of some long lost or misunderstood vision of the Constitution’s framers regarding executive power. This claim is of the greatest importance for the future of the American presidency because it is predicated on a broad assertion of how the original governing document was framed. But in order to understand its import, the theory itself requires explication.

THE UNITARY THEORY: ARTICLE II ON STEROIDS? The unitary theory of executive power emerged in the 1980s in the Justice Department’s Office of Legal Counsel under President Ronald Reagan. Under office heads Theodore Olson and Charles Cooper, and Attorney General Edwin Meese, staff lawyers, including future Supreme Court Justice Samuel Alito, formulated the unitary executive theory. With coordinate support from the newly formed organization of conservative lawyers, the Federalist Society,25 these young legal thinkers were looking for a way to limit federal power and curb, if not dismantle, the modern regulatory state, especially independent commissions. In the words of the Federalist Society, it is “a group of conservatives and libertarians dedicated to reforming the current order.”26 The phrase “unitary executive” was derived from references in the Federalist Papers to “unity” in the executive.27 The phrase appears most famously in Alexander Hamilton’s Federalist Paper 70, in which he wrote that the “unity” of the executive was one of the important advantages of the executive office proposed in the

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new Constitution. But Hamilton’s reference was far more straightforward than that ascribed to it by the unitary theorists: Hamilton was simply comparing the presidency as an office occupied by a single individual with competing proposals of the day for a “plural executive,” whereby the office would be composed of two or more people who would function as a kind of executive committee.28 Departing from the traditional conservative view that sought limited executive power,29 the unitary view argued for even greater presidential power as a means of attacking, and routing, power in the rest of the government. As applied during the George W. Bush presidency, it deigned to empower the president to exercise sole control over the removal of Executive branch officials, to direct the actions of such officials, and to nullify the decisions or actions of others that are believed to impede the president’s full control over the Executive. In practice, this meant that Bush felt at liberty to ignore provisions of laws with which he disagreed (most prominently by relying on signing statements), reinterpret or set aside treaties unilaterally, determine the fate of enemy combatants, use tactics generally considered to be torture against enemy combatants despite strictures against such actions in federal and international law, allow warrantless surveillance of domestic phone calls contrary to existing law, and curtail judicial oversight, among other actions. Further, the unitary view questions the very constitutionality of government agencies (and the rules they issue) created to be independent of the president by law – i.e., independent regulatory agencies, commissions, and other similar entities,30 notwithstanding the undisputed fact that presidents are empowered to appoint the heads of these agencies, and that these agencies’ constitutionality has been upheld since their creation.31 In fact, the legal basis for the modern bureaucracy, including independent agencies, is one of the most well established features of modern governance.32 In addition, Bush’s unitary approach asserted that the other branches of government could not interfere with presidential actions arising from these executive powers. It was on this basis that Bush argued that he could ignore laws, or provisions of laws, that, in his view, impinged on his so-called unitary power as chief executive. From 2001 to 2008, Bush used signing statements to void, or refuse to enforce, laws or provisions of laws in nearly 1200 instances (roughly twice the number of all of his predecessors combined),33 asserting that these provisions infringed on his unitary executive power.34 In addition, Bush administration lawyers have also argued that the courts may not adjudicate in areas the president deems within his executive power. Administration lawyers have made these arguments in several court cases.35 Key to the unitary theory is the contrarian and counter-factual assumption that presidential power has declined, not increased, since the enactment of the Constitution in 1789.36 In 1989, Theodore Olson (who also served as assistant attorney general in the Reagan administration and as solicitor general in the second Bush administration) asserted that the presidency had endured “two centuries of unrelenting encroachments by Congress,” during which time Congress has “adeptly and persistently eroded and disassembled executive power. . . .”37 The capstones of the congressional erosion of presidential power, by this view, were the War Powers Act of 1973 and congressional actions related to the Iran-Contra scandal of the Reagan administration in the 1980s.38 In order to rectify this alleged imbalance, and recapture presumably latent or dormant constitutional presidential powers, the unitary theory stakes out two sets of aggressive power claims. The first is that presidents have sole and complete control over the Executive branch. As then federal judge Samuel J. Alito said in a 2000 speech to the Federalist Society, “The

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president has not just some executive powers, but the executive power – the whole thing.”39 This power claim might seem unexceptionable on its face, but it presumes to extend presidential powers beyond the well established understanding of the president’s role as chief executive. It rests on a very specific reading of key phrases in Article II.40 It cites the “vesting” clause – the first sentence of Article II – noting its slightly different wording, as compared with the first “vesting” sentences of Articles I and III, as a gateway to vastly greater executive power. Article I grants to Congress “all legislative Powers herein granted”; Article III says “The judicial Power of the United States, shall be vested in one supreme Court,” and in “inferior Courts. . . .” Article II says, “The executive Power shall be vested in a President of the United States of America.” The unitary argument insists that the absence of strictly parallel wording (no “herein granted” in the Article II phrase) means that the founders gave the executive far greater power than the other two branches. Unitarians further reference the oath clause in Article II, section 1, where the president swears to “preserve, protect and defend the Constitution” and also the provision in Article II, section 3, requiring the president to “take Care that the Laws be faithfully executed” to argue that the president somehow has a special, independent responsibility to determine what is and is not constitutional, especially as related to the internal workings of the Executive branch. The unitary interpretation of these phrases rests, as it must, on an arcane and formerly unknown (that is, before the 1980s) interpretation. The more straightforward interpretation of the differences in the wording just quoted is that the “herein granted” in Article I meant to both recognize Congress’s vast enumerated powers (a list unmatched in Article II), but to also limit this dominant branch in the manner described earlier. The vesting of executive power in the first sentence of Article II reflected both the relative vagueness of Article II’s construction in comparison to that of Article I, owing to difficulties faced by the founders in deciding how the office was to be constructed, and the desire of a few to at least open the door to a stronger executive in the years to come. As Charles Thach concluded decades ago, this wording at the start of Article II reflected the embrace of “the characteristically American doctrine of coordinate departments. The unrestrained legislature and the subordinate executive had had its day, and, so far as the United States were concerned, had ‘ceased to be.’”41 In other words, it was an instrumental part of the birth of an independent executive within the separation of powers and checks and balances framework. It is also generally understood to reference some residuum of executive-type powers beyond those listed, as might be exercised by a president in times of emergency, although this matter continues to be hotly debated.42 The main dispute over the wording from Article III was another matter left unresolved: whether there should or should not be federal inferior courts below the Supreme Court. The constitutional convention punted by letting Congress decide at a later date, if it so chose.43 The unitary view insists on “an absolute separation of powers between the three branches of government.”44 This appears to be the root meaning of Alito’s claim, quoted earlier, that the president possesses “the executive power – the whole thing.” The claim rejects the very idea that powers are somehow shared or overlap between the branches.45 The fact that this view flies in the face of the bedrock understanding of how the American three-branch system of governance works little deters unitary advocates. But note that the unitary view is predicated on an “originalist” or “original intent” reading of the Constitution. It is, after all, central to modern conservatism that contemporary governmental actions should conform to an originalist view of the Constitution; i.e., that the modern exercise of powers should hew

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closely to a narrow or strict interpretation of the Constitution, and the founders’ intent behind it, as it was contemplated in 1787. The opposing, “living Constitution” perspective, expressing the view that constitutional intent should be married to other considerations, including historical evolution and contemporary needs, is anathema. On its face, the unitary view reads more like the product of a living Constitution rather than an originalist orientation, given its radical departure from constitutional text and received understanding, as well as its recent formulation. As mentioned, the provenance of the unitary theory dates to Justice Department lawyers, and the Federalist Society, in the 1980s. Yet the theory’s legitimacy hinges on the claim that its roots were founded in 1787, not the 1980s. As one architect of the unitary view admitted, “What the idea had lacked was an intellectual justification and defense.”46 One might ask, how could modern constitutional analysis uncover such a vast realm of heretofore misunderstood or unknown executive powers more than 200 years after the document’s writing, especially considering the mammoth degree of study, scrutiny, and writing to which the Constitution has been subject during that entire time? The establishment of such a constitutional pedigree is not a task to be completed solely by political figures, as its credibility would rest squarely on its historical, academic, and intellectual integrity. That this enterprise began as a political rather than scholarly enterprise is clear enough. As one study noted, the Meese Justice Department under Reagan “became a giant think tank where these passionate young conservative legal activists developed new legal theories to advance the Reagan agenda.”47 Another account of this period characterized the Justice Department during the Reagan administration as one that “saw increased presidential power across the board as one of the core missions of the Department of Justice.”48 Critical to this new theory’s credibility and intellectual pedigree was the establishment of its academic integrity, and it was here that legal academic writings in law reviews played an indispensable role.

THE LAW REVIEW BREEDING GROUND Elsewhere I argue that legal training and law reviews are a breeding ground for wayward constitutional theorizing.49 In the case of the presidency, legal academic analysis has provided the critical scholarly legitimacy for the primary ideas that flowered in the second Bush administration.50 To state the argument briefly, legal training, including the adversarial process, advocacy, and client loyalty, are well suited to the American system of justice, where opposing, one-sided arguments collide to produce a just outcome. By its nature, the adversary process often has the effect of giving the presentation of truth a lower priority, as winning the argument becomes the most important goal. When these principles are applied to scholarly analysis of constitutional matters, the all-too-frequent result is selective analysis, overheated rhetoric, overstated conclusions, and distortion of facts and concepts. Such wayward theorizing too easily finds its way into print in the nation’s hundreds of law journals where, unlike literally every other academic discipline, the professional publications are run by law students, not faculty or other trained professionals, and peer review is almost never used to determine publication worthiness. The result is that publication decisions are not, and cannot be made, based on the substantive merit of the articles submitted. Admittedly, one can find

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much excellent writing in law journals. The problem is not that excellent writing does not exist, for it does; the problem is that there is no floor or barrier to errant writing. Articles referencing the unitary executive began to appear in law journals in the mid1980s,51 but the first full-blown and sustained explication and defense of the idea was published in 1992.52 Thereafter, a lengthy series of articles appeared debating the merits of the unitary theory.53 Capping the unitary argument was a series of four law review articles, amounting to nearly 500 published pages, all authored by Steven Calabresi, Christopher S. Yoo, and other associates, that provide a chronological account of what they claim shows the infusion of the unitary executive throughout American history under the modern Constitution.54 The sweep and ambition of this unitary view writing is concisely encapsulated by legal writer Gary Lawson, whose breathtaking argument in his article on the subject is that, as per the unitary theory, “The post-New Deal administrative state is unconstitutional. . . .”55 The unitary executive theory literature found in law reviews suffers from four overarching problems:56 it cherry-picks its evidence, often misrepresents the historical record, and ignores pertinent literature in other disciplines; it attempts to manufacture a constitutional pedigree for a purely contemporary political construct; it seeks to configure a constitutional basis for overturning existing case law that has long accepted the constitutionality of (in this case) the modern regulatory state; and it is a paradigmatic example of the lawyerly advocacy scholarship just described – which is to say, it is not scholarship at all. Most notably, the unitary theory turns the related principles of separation of powers and checks and balances on their head. Any power identified as belonging to the president or the executive branch is, by unitary theory definition, beyond the reach of the other two branches,57 despite the fact that the essence of the three-branch relationship is one of overlapping and interconnected powers.

THE SECOND BUSH PRESIDENCY’S LEGACY The Bush administration’s unceasing effort to rewrite Article II, including such activities as the prolific use of signing statements to rewrite legislation, expansive claims of executive privilege, unbounded declarations of secrecy spanning every manner of presidential (and vice presidential) action and document, warrantless wiretapping, war powers claims, detaining of suspects related to external threats, invocation of his commander-in-chief power as a basis for claims to unfettered power over military decisions,58 among other actions, all rode on square constitutional claims made by the administration. While the substance of these claims is, at the least, open to dispute, George Bush was no Neustadtian president seeking to buttress puny formal powers by marshaling his persuasion skills to strike bargains with Congress or the bureaucracy – nor was his activist vice president, Dick Cheney. It is something entirely different, not because the Bush presidency was the first to expand the powers of the office, but because it was the first to attempt to do so by implementing a wholesale rewriting of the office’s constitutional and legal powers under the banner of the unitary executive. In the Bush era, the Neustadt power-to-persuade line of analysis seems not only obsolete, but positively quaint. It is no surprise that Neustadt’s formative thinking about presidential power began in the Truman presidency. One might hypothesize that, had Neustadt come of political age during this Bush presidency, he would have written a book very different from,

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perhaps even contrary to, Presidential Power. As a “how-to” guide for presidents, Neustadt’s paradigm may have been verified by Truman, Eisenhower, Kennedy, and Johnson, but it is falsified by the second Bush presidency. One may be tempted to dismiss these criticisms as the mere consequence of ideological politics – Bush political opponents seeking to mask partisan criticism in the guise of charges of an excessive executive branch power grab. This objection fails in the first instance because it fails to address the gaping problems associated with the unitary arguments and provenance, extending to law office history, advocacy as scholarship, and law journals controlled by students. Second, this objection fails to note that criticism of the Bush unitary view spans the ideological spectrum; many on the political right have expressed grave reservations about this new turn in hyper-executive politics. American conservatism underwent no little stress during the George W. Bush presidency, especially as those who hewed both to originalism and to a more traditional view of conservatism that remains skeptical of too much power concentrated in too few hands (although the two do not necessarily coincide), viewed the Bush administration’s unitary view with no little alarm. Columnist and unitary theory critic George Will, for example, noted with originalist skepticism that “only one delegate [at the Constitutional Convention]. . .favored vesting presidents with an unfettered power to make war.”59 Former Reagan administration lawyer Bruce Fein has been a harsh critic of Bush administration unitary power claims, including abuse of executive privilege (which Fein dubbed “executive nonsense”), violation of the Foreign Intelligence Surveillance Act (FISA), and Bush’s suspension of habeas corpus for detainees.60 Former Bush federal attorney David Iglesias referred to Bush’s power claims related to executive privilege as “executive privilege on steroids” and “executive carte blanche.”61 Joseph Baldacchino, president of the National Humanities Institute, referred to the “failures” of the Bush administration, singling out the administration’s “warrantless searches and spying [and] the concentration of power in the executive branch at the expense of Congress, the courts and the states. . . .”62 Writing in The American Conservative, Claes Ryn wrote with disdain about “the so-called ‘unitary’ executive – the notion of the pre-eminence of the president, who is to be as little constrained as possible by checks and balances and the rule of law. Their goal is wholly at odds with the constitutionalism of the framers.”63 The Cato Institute’s Gene Healy warned of “America’s Dangerous Devotion to Executive Power,” dubbed the Bush unitary view “Unitarian Heresies,” offered a lengthy analysis that undercuts the tenets of the unitary view, and was especially critical of Bush lawyer and University of California at Berkeley law professor John Yoo, primary author of the administration’s torture memos and arch proponent of a nearly unlimited war power for the president.64

CONCLUSION: THE POST-BUSH PRESIDENCY George Bush was no Neustadtian president seeking to buttress puny formal powers by marshaling his persuasion skills to strike bargains with Congress or the bureaucracy. Throughout his presidency, Bush showed little patience for, or interest in, the kind of constructive political engagement and bargaining commonly found among his predecessors. His effort to cloak nearly every significant decision and policy as somehow consonant with an originalist reading of the Constitution, and to then justify these actions in Neustadtian

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“command” terms, separates him from past activist presidents. What’s more, even if the Bush unitary view is rejected by his immediate successors, one important lesson of the presidency is that, if the past is any guide, future administrations will surely be tempted to resurrect and embrace this theory. Bearing this in mind, the lessons for the future are reducible to a series of propositions: 

 



Proposition 1: The Constitution simply does not have all the answers to the riddle of executive power. This fact alone points to the flaw of certitude that typifies originalism as constitutional doctrine. Proposition 2: The arc of presidential power from past to present is rooted in, but cannot be adequately explained by, Article II powers alone. Proposition 3: Like the Constitution itself, Article II, ambiguous though it is, is not a Rorschach ink blot, the meaning of which is to be interpreted in any manner by whoever happens to be viewing it. All theories are not equally tenable; not every constitutional debate consists of two equally valid and legitimate opposing points of view. Text and historical evidence do provide some, but not all, answers to power questions. Proposition 4: An originalist reading of the Constitution leads to legislative supremacy, not to the unitary executive. Proposition 5: The unitary theory fails on the merits in its attempt to bridge its grandiose power claims with an originalist reading of the Constitution. It is faux originalism. Despite its pretensions to seriousness, it is the product of a pseudoscholarly enterprise that, at bottom, suffers from a fatal flaw: it rejects the essence of the separation-of-powers-checks-and-balances system (while falsely claiming obedience to it) precisely because it deems to vest in the president a constitutional power to reject or ignore statutory law if the president decides solely for him- or herself that such law trammels on executive prerogatives. It further denies to the courts the right to adjudicate matters that the executive deems, by its self-made standard, beyond the court’s reach. It’s not just against the Constitution; it’s bad law, bad governance, and bad politics.

There is plenty to argue about regarding the scope of constitutional powers, and the meaning of Article II, whether it is the bounds of the commander-in-chief power, or the meaning of the vesting of executive power clause, or other matters that have been debated for over two centuries. In the twenty-first century, one can accept the realities of modern presidential governance, and take that argument one step further by making a logical and even respectable normative argument that the traditional separation of powers system has outgrown its usefulness – that the American public mind seeks and prefers executive power, very much in the way Clinton Rossiter described it in his forgotten 1950s classic The American Presidency, that it has no patience for a national legislature that has failed to adapt to the twentieth, much less twenty-first century, that Congress needs a strong executive hand more than ever before, and that a twenty-first century America needs an executive-centered system of governance, despite the risks of such an unabashed express turn to executive power. But the unitarians do not rest their arguments on any such “living Constitution” view, because their ideological restraints impel them to justify their actions and theory on

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originalism, which leads us back to the faux “scholarship” that is the fountainhead of the unitary theory. The Bush presidency was entitled to make a case for a more bold and powerful presidency. But the Bush unitary executive is an honest reading of the Constitution only if the reader is standing on his or her head at the time. Therefore, the second Bush presidency was not, in any important sense, a “Constitutional presidency” – it was, rather, a Contempt-of-Constitution presidency, and that is the legacy the Bush administration leaves to its successors. Finally, if the Constitution can be said to mean the opposite of what it says, then the document simply has no meaning.

ENDNOTES 1

Louis Fisher, The Politics of Shared Power (College Station, TX: Texas A&M University Press, 1998), xii. Richard, E. Neustadt, Presidential Power and the Modern Presidency (New York: Free Press, 1990, first pub. 1960), 29. 3 John Locke, Of Civil Government (Chicago: Regnery, 1955), 125. See James P. Pfiffner’s superb discussion of Locke and other theorists in Power Play: The Bush Presidency and the Constitution (Washington, D.C.: Brookings Institution Press, 2008), ch. 1. 4 Garry Wills, A Necessary Evil (New York: Simon and Schuster, 1999), Chap. 5. See also Robert J. Spitzer, President and Congress (New York: McGraw-Hill, 1993), 13-16. 5 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961), 322. 6 Clinton Rossiter, 1787: The Grand Convention (New York: New American Library, 1966), 55. 7 Roger Davidson, “‘Invitation to Struggle’: An Overview of Legislative-Executive Relations,” Annals of the American Academy of Political and Social Science, 499(September 1988), 11. 8 Harold Hongju Koh, The National Security Constitution (New Haven, CT: Yale University Press, 1990), 75-76. 9 Wills, A Necessary Evil, 85. 10 Wills, A Necessary Evil, 86. None of this is to suggest, however, that Congress’s Constitution-based preeminence was untrammeled – far from it. Aside from the checks of the other two branches, Congress was checked by its division into two houses, making it the only branch of the three divided against itself; the extensive list of powers granted Congress in Article I, section 8, was immediately followed by a specific list of limitations described in Article I, section 9; and the First Amendment of the Bill of Rights, completed two years after the Constitutional Convention, begins with “Congress shall make no law. . .” followed by the specific prohibition that Congress is not to infringe on individual liberties enumerated in the First Amendment. 11 Spitzer, President and Congress, ch. 2; Wills, A Necessary Evil, 87-90; Louis Fisher, Constitutional Conflicts Between Congress and the President (Lawrence, KS: University Press of Kansas, 2007), ch. 1. Among the Constitution’s founders, Alexander Hamilton stands out as one who sought to stake out an aggressive view of executive power as President George Washington’s Secretary of the Treasury and de facto chief of staff. Yet Hamilton’s efforts stand out precisely because they were anomalous. 12 Theodore, J. Lowi, The Personal President (Ithaca, NY: Cornell University Press, 1985), 35. 13 Woodrow Wilson, Congressional Government (New York: Meridian Books, 1956; first pub. 1885), 23, 31. 14 A small sampling of such writing includes, Edward S. Corwin, The President: Office and Powers (New York: NYU Press, 1957); Clinton Rossiter, The American Presidency (New York: New American Library, 1960); Lowi, The Personal President; Neustadt, Presidential Power; Stephen Skowronek, The Politics Presidents Make (Cambridge, MA: Harvard University Press, 1993); Spitzer, President and Congress; Gordon Silverstein, Imbalance of Powers (New York: Oxford University Press, 1997); Michael A. Genovese, The Power of the American Presidency (New York: Oxford University Press, 2001). Louis Fisher provides careful case analysis of how this shift has taken place in such key areas as war powers and spending in Congressional Abdication on War and Spending (College Station, TX: Texas A&M University Press, 2000). A synthesis of competing arguments about presidential power is found in Raymond Tatalovich and Steven Schier, The Presidency and Political Science (Armonk, NY: M.E. Sharpe, 2013). 15 Wilfred, E. Binkley, President and Congress (New York: Vintage, 1962), 13. 16 Robert, J. Spitzer, “The Presidency: The Clinton Crisis and Its Consequences,” in The Clinton Scandal, Mark J. Rozell and Clyde Wilcox, eds. (Washington, D.C.: Georgetown University Press, 2000), 1-17; David Gray Adler and Nancy Kassop, “The Impeachment of Bill Clinton,” in The Presidency and the Law, David Gray Adler and Michael A. Genovese, eds. (Lawrence, KS: University Press of Kansas, 2002), 155-74; David E. Kyvig, The Age of Impeachment (Lawrence, KS: University Press of Kansas, 2008). 2

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Robert, J. Spitzer, The Presidential Veto (Albany: SUNY Press, 1988), 71-104; Richard A. Watson, Presidential Vetoes and Public Policy (Lawrence, KS: University Press of Kansas, 1993); Charles A. Cameron, Veto Bargaining (New York: Cambridge University Press, 2000). 18 Jefferson’s Letters, arranged by Willson Whitman (Eau Claire, WI: E.M. Hale and Co., 1950), 108. 19 Matthew, J. Dickinson, “The Politics of Persuasion,” in Presidential Leadership, ed. Bert A. Rockman and Richard W. Waterman (New York: Oxford University Press, 2008), 277-310. 20 Neustadt, Presidential Power, 32. 21 Neustadt, Presidential Power, 28. 22 Neustadt, Presidential Power, xix. 23 See for example Bert A. Rockman and Richard W. Waterman, eds., Presidential Leadership (New York: Oxford University Press, 2008). 24 William G. Howell, Power Without Persuasion (Princeton, NJ: Princeton University Press, 2003), 8. 25 See Steven, M. Teles, The Rise of the Conservative Legal Movement (Princeton, NJ: Princeton University Press, 2008), chap. 5. See also Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015). 26 The Federalist Society was formed in 1982. See http://www.fed-soc.org/AboutUs/ ourbackground.htm. 27 Jeffrey Rosen, “Power of One: Bush’s Leviathan State,” The New Republic, July 24, 2006, 8. 28 Hamilton, Madison, and Jay, The Federalist Papers, 423-31. 29 James Burnham, Congress and the American Tradition (Chicago: Regnery, 1959); Willmoore Kendall, The Conservative Affirmation (Chicago: Regnery, 1963); Alfred DeGrazia, Republic in Crisis (New York: Federal Legal Publications, 1965). See also Tatalovich and Schier, The Presidency and Political Science, chap. 7. 30 Jess Bravin, “Bush’s Power Play Has Key Ally” Wall Street Journal, January 5, 2006, 12; “How Bush Has Asserted Powers of the Executive,” USA Today, June 6, 2002, 2A; R. Jeffrey Smith and Dan Eggen, “Justice Expands ‘Torture’ Definition,” Washington Post, December 31, 2004, A1; Stuart Taylor, Jr., “The Man Who Would Be King,” Atlantic Monthly, April 2006, 25-26. The first independent regulatory agency, the Interstate Commerce Commission, was created in 1887. 31 Humphrey’s Executor v. U.S., 295 U.S. 602 (1935); Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson, 487 U.S. 654 (1988). 32 The voluminous and decades old literature on the American bureaucracy, nearly all of which is ignored by advocates of the unitary view, confirms the constitutional, legal, and political place for agencies. Good summaries are found in Robert E. Cushman, The Independent Regulatory Commissions (New York: Oxford University Press, 1941); Theodore J. Lowi, The End of Liberalism (New York: W.W. Norton, 1979); Richard J. Stillman II, The American Bureaucracy (Chicago: Nelson-Hall, 1987); Peter Woll, American Bureaucracy (New York: W.W. Norton, 1977; first pub. 1963), 62-63. 33 Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (New York: Little, Brown, 2007), 230; http://www. coherentbabble.com/listGWBall.htm. 34 Charlie Savage, “Bush Challenges Hundreds of Laws,” Boston Globe, April 30, 2006, A1; Savage, “Bush Cites Authority to Bypass FEMA Law,” Boston Globe, October 6, 2006, A1. These data come from the work of political scientists Christopher S. Kelley and Phillip J. Cooper. For more on signing statements, see Ryan J. Barilleaux and Christopher S. Kelley, eds., The Unitary Executive and the Modern Presidency (College Station, TX: Texas A&M University Press, 2010); Phillip J. Cooper, By Order of the President (Lawrence, KS: University Press of Kansas, 2002); Cooper, “George W. Bush, Edgar Allen Poe, and the Use and Abuse of Presidential Signing Statements,” Presidential Studies Quarterly 35(September 2005): 515-32; Louis Fisher, “Signing Statements: What to Do?” The Forum 4(2006): 1-10. Bush II is not the first president to use signing statements to balk at the enforcement of provisions of bills. But all of Bush’s predecessors combined used signing statements in such a manner in about 600 instances, compared with 1200 signing statement provisions in Bush’s two terms. Moreover, no president has ever overlain these actions with a theory in the nature of the grandiose unitary theory. Robert J. Spitzer, “Liberals and the Presidency,” Contending Approaches to the American Presidency, Michael A. Genovese, ed. (Washington, DC: CQ Press, 2012), 87-90. 35 See Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), and Hamdan v. Rumsfeld (2006). 36 Bush’s Vice President, Dick Cheney, was that administration’s foremost proponent of the corollary notion that presidential power was gutted in the 1970s, and that it had not recovered its proper powers from then up to the present. Jane Mayer, “The Hidden Power,” The New Yorker, July 3, 2006, 44-55. This notion has been challenged from all political quarters. For example, as Reagan Justice Department official Bruce Fein commented about the Bush administration’s and Cheney’s views of presidential power, “They’re in a time warp. If you look at the facts, presidential powers have never been higher.” Dana Milbank, “In Cheney’s Shadow, Counsel Pushes the Conservative Cause,” Washington Post, October 11, 2004, A21. See also Shirley Anne Warshaw, The Co-Presidency of Bush and Cheney (Palo Alto, CA: Stanford University Press, 2009). 37 Theodore, B. Olson, “The Impetuous Vortex: Congressional Erosion of Presidential Authority,” in The Fettered Presidency, L. Gordon Crovitz and Jeremy Rabkin, eds. (Washingon, D.C.: American Enterprise Institute, 1989), 231.

46 38

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Minority Report, Report of the Congressional Committees Investigating the Iran-Contra Affair (Washington, D.C.: GPO, 1987. Then-Rep. Dick Cheney was a key architect of the Minority Report, which set out many of the tenets of the unitary executive view. 39 Bravin, “Bush’s Power Play Has Key Ally.” 40 Barilleaux and Kelley, eds., The Unitary Executive and the Modern Presidency. 41 Charles, C. Thach, Jr., The Creation of the Presidency 1775-1789 (New York: Da Capo Press, 1969; first pub. 1923), 167. 42 J. W. Peltason and Sue Davis, Corwin and Peltason’s Understanding the Constitution (New York: Harcourt College Publishers, 2000), 151. 43 Peltason and Davis, Corwin and Peltason’s Understanding the Constitution, 181. 44 Frederick A.O. Schwarz Jr. And Aziz Huq, Unchecked and Unbalanced (New York: The New Press, 2008), 156. 45 Savage, Takeover, 48. 46 “Yoo Presidency, The,” The New York Times Magazine, December 11, 2005, 16. 47 Savage, Takeover, 45. 48 Schwarz and Huq, Unchecked and Unbalanced, 156. 49 Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (New York: Cambridge University Press, 2008). 50 See Robert J. Spitzer, “Saving the Presidency From Lawyers,” Presidential Studies Quarterly 38(June 2008), 329-46. 51 Peter L. Strauss, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch,” Columbia Law Review 84(April 1984): 599-602; Geoffrey P. Miller, “Independent Agencies,” Supreme Court Review (1986): 41-97; Harold J. Krent, “Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government,” Northwestern University Law Review 85(Fall 1990), 62-112. 52 Steven, G. Calabresi and Kevin H. Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary,” Harvard Law Review 105(April 1992): 1153-1216. Calabresi is a co-founder of the Federalist Society, and also worked as a lawyer in the Reagan administration. 53 Articles defending the unitary view include, Gary Lawson, “Changing Images of the State: The Rise and Rise of the Administrative State,” Harvard Law Review 107 (April 1994): 1231-54; Steven G. Calabresi and Saikrishna B. Prakash, “The President’s Power to Execute the Laws,” Yale Law Journal 104(December 1994): 541-665. Critics of the unitary view include: Lawrence Lessig and Cass R. Sunstein, “The President and the Administration,” Columbia Law Review 94(January 1994): 1-120; Abner S. Greene, “Checks and Balances in an Era of Presidential Lawmaking,” University of Chicago Law Review 61(Winter 1994): 123-96; Martin S. Flaherty, “The Most Dangerous Branch,” Yale Law Journal 105 (May 1996): 1725-1839; Neil Kinkopf, “Of Devolution, Privatization, and Globalization: Separation of Powers Limits on Congressional Authority to Assign Federal Power to Non-Federal Actors,” Rutgers Law Review 50(Winter 1998), 331-96. 54 Steven G. Calabresi and Christopher S. Yoo, “The Removal Power: The Unitary Executive During the First HalfCentury,” Case Western Reserve Law Review 47(Summer 1997): 1451-1561; Steven G. Calabresi and Christopher S. Yoo, “The Unitary Executive During the Second Half-Century,” Harvard Journal of Law and Public Policy 26(Summer 2003): 667-801; Christopher S. Yoo, Steven G. Calabresi, and Lawrence D. Nee, “The Unitary Executive During the Third Half-Century,” Notre Dame Law Review 80(November 2004): 1109; Christopher S. Yoo, Steven G. Calabresi, and Anthony J. Colangelo, “The Unitary Executive in the Modern Era, 1945-2004,” Iowa Law Review 90(January 2005): 601-731. These arguments were published as Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive (New Haven, CT: Yale University Press, 2008). 55 Lawson, “Changing Images of the State,” 1231. 56 Particularly effective critiques of the unitary view are found in Lessig and Sunstein, “The President and the Administration”; Kelley and Barilleaux, “The Past, Present, and Future of the Unitary Executive”; and Louis Fisher, “The Unitary Executive and Inherent Executive Power,” Journal of Constitutional Law 12(February 2010): 569-591. 57 Schwarz and Huq, Unchecked and Unbalanced, 156-57. 58 See Spitzer, Saving the Constitution from Lawyers, ch. 4. 59 George Will, “The ‘Unitary Executive,’” Washington Post, May 4, 2008, B7. 60 Bruce Fein, “Executive Nonsense,” Slate Magazine, July 11, 2007, at http://www.slate.com/ id/2170247/; Fein, “Carts Before Horses,” Slate Magazine, August 31, 2007, at http://www.slate.com/id/2173106/. See also Fein, Constitutional Peril: The Life and Death Struggle of Our Constitution and Democracy (New York: Palgrave/Macmillan, 2008). 61 David Iglesias, “Out of Bounds,” Slate Magazine, June 13, 2008, at http://www.slate.com/ id/2193365/. 62 Joseph Baldacchino, “Conservatism Can Be Revived: Unmasking Neocons Just a Beginning,” Epistulae No. 3, September 25, 2008.

The Unitary Executive and the Bush Presidency

Claes, G. Ryn, “Power Play,” The American Conservative, October 6, 2008, at http://www.amconmag.com/ article/2008/oct/06/00025/. 64 Gene Healy, The Cult of the Presidency (Washington, D.C.: Cato Institute, 2008), 19-33. For more on the problems with Yoo’s view of the commander in chief power, see Spitzer, Saving the Constitution from Lawyers, 103-114. 63

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 4

COMMENTARY: UNDERSTANDING THE GEORGE W. BUSH PRESIDENCY* Peter Baker Author, Days of Fire: Bush and Cheney in the White House (2013) Joseph G. Astman Distinguished Conference Scholar, Conference on the George W. Bush Presidency, Hofstra University, Hempstead, NY, US

No one, I think, would disagree that [the George W. Bush Presidency] was a very consequential presidency – a presidency that continues to reverberate even today. What do you see in the headlines of the newspapers, even as we speak? What to do in Iraq with the group called ISIS, which is basically a metamorphosis of the people that we were fighting during President Bush’s time in office? What to do about a resurgent Russia? What are the limits of surveillance versus liberty in a modern society at war with terrorism? What to do about immigration? The limits of executive power. All of these topics that we are writing about – Iran, the negotiations that are going on right now possibly to a culmination, which basically started in a somewhat different format in the last administration. All of these things have their roots in the Presidency of George W. Bush. And therefore, to understand what’s happening today, we have to understand what happened then. There’s a context to everything that happens in one presidency; they’re not disassociated from each other. ... What we found in doing research [on the George W. Bush Presidency] was that the stories were more complicated than the mythology. The mythology is, you have a powerful vice president who was manipulating the president, and that he was really driving the trains. And that’s what was happening through eight years. The story is so much more interesting and more complicated than the cartoon version. There’s no question that [Vice President Dick] Cheney was a dominant figure inside the administration early on. There’s no question he understood how power was used. President Bush gave him great latitude, no question about it. It obscures the reality to sit there and say, *

Selected commentary from Plenary Forum, “Understanding the George W. Bush Presidency,” Conference on the George W. Bush Presidency, Hofstra University, March 24, 2015.

Peter Baker and Alan C. Lowe

“Aha! Therefore, he was the puppet master.” Over time, over eight years, that relationship changes, it evolves. President Bush begins to move away from some of the things that Vice President Cheney is advocating, and by the end of their time in office, they’re actually on the opposite sides of most of the big issues that are coming up in front of them, whether it be Iran, Iraq, Russia, federal spending, gay rights, climate change, gun rights, Harriet Miers, Donald Rumsfeld, Syria. They’re basically fighting on all sorts of things up to the very end, when they actually have this sort of climatic disagreement over what to do about [Chief of Staff to the Vice President of the United States] Scooter [I. Lewis] Libby. Scooter Libby, of course, had been the vice president’s chief of staff, convicted in the CIA [Central Intelligence Agency] leak case – not of the leak itself, but of perjury and obstruction of justice. Vice President Cheney wanted President Bush to give him a pardon. He felt it was an illegitimate prosecution, he felt it was bogus, he felt it was political – it was really an out-of-control prosecutor aiming at him, that is, the vice president, and that Libby had taken the fall for. But President Bush didn’t want to do that. He didn’t much like pardons to being with. He thought it was a process that was screwed up, because people with great access would have the ability to get something that other people couldn’t get. So he didn’t much like pardons to begin with, and the idea was here’s a person with the ultimate access, asking for what amounted to a special favor. And he said, “No.” The vice president says to him, “You’re leaving a good man on the field of battle.” That was a cutting remark that sort of symbolized their break over a lot of the things that had happened over that eight years. I tell that story because I think that it reminds us that we don’t really understand a lot of what happens inside the White House, or at least not as simply or clearly as we think we do. And it’s worth taking time after it’s over to go back and introduce the people to look through the documents, to read the studies, as we get more distance and more information comes available. And I think our understanding of every administration evolves appropriately over time and both because we get more information and we have more understanding of what happened and because the context at the moment helps us put it in a different perspective. ... People talk about [Ronald] Reagan today, and Democrats will tell you good things about Reagan, too. At the time it was a pretty polarized moment. A lot of Democrats didn’t like him pretty viscerally, just like a lot of Republicans didn’t like [Bill] Clinton very viscerally. Over time our views soften. We do tend to understand and better appreciate the things that they did while not necessarily letting off the hook for the things that they didn’t do or they didn’t do well, and I think you’ve seen that with President Bush a little bit. His [approval] numbers are higher. . . . At one point they were in the high 40s. At one point, they were slightly higher than President Obama’s, which I think some Republicans took solace from. And I think there are a couple of reasons for that. One is the distance of time. In the moment, anger and passion and the fury of politics fade, and I think his post-presidential conduct of staying relatively quiet and not being out there commenting all the time, I think people have appreciated that, especially Democrats. I think he looks different partly because to liberals who didn’t much like him, they view him more favorably today compared to, say, Tea Party Republicans. They might not like Bush on Iraq, they may not like Bush on something, but they remember he did actually support immigration reform, which today Republicans are less supportive of, and they do remember PEPFAR [President’s Emergency Plan for AIDS Relief].

Commentary: Understanding the George W. Bush Presidency

I think conservatives who didn’t like President Bush, who were disaffected from him – and remember, the Tea Party movement in fact really had its roots in President Bush's time and the anger over deficits and the bailouts; Bush was not a deficit hawk, per se. But I think a lot of conservatives who kind of grew alienated from President Bush during his time, some of them have come home because they liked President Obama less and that reminds them, “Oh, that’s the president we really don’t like.” I think that President Obama to some extent validates some of what President Bush did on national security. We talk about President Bush’s controversial actions on national security; the issues of torture, detention, surveillance. Did they go too far in curtailing our liberties? What we forget is, he changed a lot of that by the time he left office; this is why he and Vice President Cheney were often at odds toward the end. President Bush moderated a lot of the harshest edges of his program by the time he left office, so that when President Obama ran against President Bush, he really ran against President Bush’s first term and inherited President Bush's second term. And by that I mean, he’d gone to Congress and gotten bi-partisan approval of the surveillance program, there wasn’t any water boarding after 2003, all the controversial stuff we saw in the CIA report just last fall had all ended by 2006, 2007, before President Bush left office. He’s the first one who tried to actually begin to move people out of Guantanamo. He actually shifted more inmates out of Guantanamo than President Obama has. Now, in President Obama’s defense, the hard ones were the ones left behind. But in other words, President Bush understood that to have a sustainable legacy, he had to kind of create a more bi-partisan consensus around some of the policies he was going to leave behind. And President Obama basically did, while making some changed and modifications, adopt a lot of the things including the drone program that President Bush had left him. So I think that shapes his legacy and may change the way he’s viewed. And then the last thing I would say is, we’re about to have another election with another Bush. That will play a big role in deciding how we look at his brother. . . . Time does change things. ... Bush trusted [Cheney], I think in a way previous Presidents didn’t have in their Vice Presidents, because Cheney had subordinated himself completely to his President. I think over time, though, you can make the argument, and some of Cheney’s people made this argument to him, that his disregard for his own public polling for instance, while admirable in principle -- not craven the way we might see politicians -- was also self-destructive. Because at a certain point in a democracy, if you want to make your points, if you want the policies that you care very much about – and he did care for very much and still does about these policies – you have to make a case for them. You do have to ultimately get consent of the governed. And I think some of his people at one point said to him, “Sir, have you looked at your poll ratings?” “No, I don’t care about them.” And they came to the conclusion, his aides did, that it had gone too far, that you had to go out and explain yourself and answer questions and describe why you’re doing the things you do and make the case publicly for why it’s important to do things you do. Otherwise, you lose the opportunity to make those changes permanent. And I think that in some way that’s why you do see Vice President Cheney since leaving office more vocal than he was during office. He now feels liberated. He told people that: “I feel liberated.” And in some ways I think his battle with Obama over these last five or six years is in some way a proxy for the quiet private battle he’d had inside the White House

Peter Baker and Alan C. Lowe

with Bush in the second term, as Bush moved away from the policies that Cheney had advocated.

Alan C. Lowe Director of the George W. Bush Presidential Library and Museum Our five-year period [that must elapse prior to the applicability of the Freedom of Information Act to the Bush Presidential Records] ended on January 20, 2014. And so, since then we have been accessible to the public through the Freedom of Information Act [FOIA]. Now, the collections we have at Bush are truly amazing, of course, because of their subjects, their complexity but as well for their volume. And that volume occasionally keeps me up at night when I think about how much stuff we have in the archives. When I was an archivist at the Reagan Library, when we were first starting up there, we only had to worry about paper records and audio-visual records. At the Bush Library we do have paper records, around 70 million pages of paper records. But what makes us really different from other Presidential Libraries is our electronic collection. We have around 80 terabytes of electronic information. Including among other things, about four million digital photographs, and over 200 million emails. If we were to print out all the emails, which we will never do, that would total roughly one billion pages. So, in emails alone, we have more records, more pages of records than all of the other Presidential Libraries combined by far. Now, to give you an idea of how quickly this has changed, whereas we have 80 terabytes of information, the Clinton Library, our most recent predecessor, has four terabytes. So, in a very short amount of time, the whole world of archives has changed. And of course, the Obama Library, when that’s set up, will have much, much more than us. Now, the National Archives knew this was happening and set up something called the Electronic Records Archive or ERA. We love acronyms, so I’m sorry I throw those around a lot. To store these and other electronic records. Our task now at the Bush Library is to process these records and make them available to you electronically in a timely way, and again, that poses some significant challenges for us because of the volume. Within the first week of being open to FOIA requests at the Bush Library, we had more records requested than they have processed at the Reagan Library in 25 years. So, that is, again, a huge challenge for my archival crew. The National Archives has created something called the Online Public Access Catalog, or OPA, where when we do process these electronic records and open them, they will be posted there. But that too has been a slow process; getting that system together and getting records posted on there. I will always note, though it may sound different, I am not complaining. These records are an immense, amazing resource for scholars and students. You’ve heard, “Presidents don’t tape themselves anymore, but their staff sure send emails.” If you really want to understand how this White House worked, who was working with whom on what project, you have it here in these emails as we process them. This president dealt with an enormous number of crises, starting with 9/11, ending with the financial crisis. In between, you have two wars, [Hurricane] Katrina, so many things happening. We have the records at the Bush Library to explain how this administration reacted to those events and essentially

Commentary: Understanding the George W. Bush Presidency

forming the analysis of that administration in the future. So, I’m very proud of the fact that we are the place to go to study those issues. That, of course, was the whole idea of the presidential library system in the first place. FDR [Franklin Delano Roosevelt] came up with the idea many years ago, because he wanted to make sure those records were preserved for that type of analysis in the future. He looked at earlier presidents and realized too often they go home with their papers, and over time they would get lost or stolen or burned up, those types of things. They were scattered. He didn’t want that to happen, so he built and gave over that first library to the National Archives. Now, looking at what we’re doing in Dallas. So far, we’ve processed and notified roughly 710,000 pages. So, we’re just at the tip of the tip of the iceberg. I should explain, under the PRA [Presidential Records Act of 1978], the incumbent President and the former President still retain certain rights of executive privilege. Say you come in and you ask for a FOIA request and it’s 10,000 pages, and we get through that 10,000 pages. We review it under the PRA, there are different restrictions and exemptions we have to apply for national security and personal privacy, and so forth. But, once we get through that process, let's say we’ve redacted things, we’ve done what we have to do at the National Archives. Then we have to notify the incumbent President and former President Bush and say, “We’re going to release these records.” And they then have 60 days, if they wish, to claim executive privilege to close some or all of those records. And they have to go through that process. So far, we’ve gone through that with about 710,000 pages and have put those out. But we have big goals this year in processing: We’ll do at least half a million pages this year. My crew gets upset when I say more than that. I think we’ll do more than that, but they are working very, very hard every day in a variety of formats to get those records open. So far, of my 19 archival crew, I have one still doing systematic review, essentially picking topics we know are important and trying going through those records, but most of them now are just responding every day to different FOIA requests. I think by the end of the year, they all will be doing that. Now, I should note for you, there were some records open during the administration. Some documents and a lot of photographs. Those are on our website. So if you go to www.georgewbushlibrary.smu.edu, we have the frozen White House website on there. There are some documents and a whole bunch of photographs that you can find on that frozen website. And we do have other records in our archival collection as well. We provide reference on the Bush gubernatorial records. We have those at the Bush Library, held there in partnership with the Texas State Library and Archives Commission. It’s been a great partnership. And so we do provide reference on those. And we also hold in courtesy storage pre- and post-presidential records from President and Mrs. Bush that we hope one day to have a deed of gift for, and then we’re now very, very early on in the process of starting to solicit collections from other major associates of the President and Mrs. Bush. And, of course, we’re very interested in oral history. What’s going on in the Miller Center, which they always do a spectacular job there, and what Jeff [Engel] and others are doing at the Center for Presidential History at SMU [Southern Methodist University]. That Center has been a terrific partner for the Library. We not only love their oral history efforts, but we do a lot of public programming with them as well, bring in a lot of speakers looking at presidential history. So, again, at the end of the day, I see my job as Director of the Library is to provide information, and I’m really proud of what we’ve done so far at the Bush Library. ...

Peter Baker and Alan C. Lowe

For me, as an archivist at heart, I believe you can start telling the story and certainly Peter’s [Baker] book is spectacular in that regard, in terms of doing interviews and using what documentation is available. In the long run, the real story of this administration is written when we do our work at the Bush Library and start opening these records. I think, looking over time, I’ve been in the library system, as you heard, most of my career. You get a much, much more balanced and understanding view of that presidency no matter what your political thoughts are. I’ve seen throughout my career, you see that these presidents deal with -- all of them deal with very difficult issues. Issues that change our country and change the world, and you get a much more of a sympathy for what they're going through when you look at these records and you see, despite your political beliefs, they are trying their best to address these issues in a way they think correct for the future of our country. So when you start opening these records, that’s been my thought over time, that’s what you see. But, we’re slowly getting there and I think that’s when you can really write that story. We have to start telling that story a little bit at the museum because we have the exhibit. And that’s a challenge every presidential library has at the beginning. How do you encapsulate all these issues and these events? And how do you tell them in the correct way? We did that at the Bush Library, when you come down to see the museum. Of course, you have a president’s perspective, and that’s part of the story. We need to think about that and understand what he was thinking during these events and when he was making these policies. But also, we try to provide some of the other side of the story. We have something called the Decision Points Theater, named after his book. In which we talk about the surge in Iraq, the decision to go into Iraq, the response to Hurricane Katrina, the response to the financial crisis, and we look at the debates that were going around then of what you should, and should not do. And it’s all done kind of in a fun way where you act like the president and you’re getting advice from different sources. But at the end of the day, it’s a very serious thing, and we’re able to frame those debates. And say, what people were saying at the time about the surge, for example. So that we have to start telling the story a little bit ahead of time. That’s part of our educational mission, but at the end of the day, I think, the real story’s only written in later years as those archives become available.

PART II: POLITICAL LEADERSHIP IN THE GEORGE W. BUSH PRESIDENCY

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 5

THE IDEOLOGICAL CHARACTER OF GEORGE W. BUSH Graham G. Dodds Concordia University, Montreal, QC, Canada

ABSTRACT This chapter seeks to provide a wide-ranging analysis of President George W. Bush’s political ideology. Drawing on existing scholarship and journalism, I consider several different ways of conceptualizing and characterizing Bush’s ideology, including quantitative assessments, an examination of his campaign pronouncements, his major appointments and public policies, and both praise and criticism from politicians and journalists across the ideological spectrum. I argue that the best overall account of Bush’s ideology is Stephen Skowronek’s view of Bush as an orthodox innovator of conservatism who sought to adapt and extend popular conservative norms, as that view both explains considerations that alternatives accounts cannot and also helps to make sense of some of Bush’s difficulties as president.

INTRODUCTION Among the many controversial aspects of George W. Bush’s presidency, the question of his ideology often looms large. Even when not explicitly front and center, debates about Bush’s ideology color many of the other debates about his presidency. Was Bush a traditional conservative, a compassionate conservative, a neoconservative, a hard right radical, an inconsistent or inauthentic conservative, a pragmatist, or an unserious politician bereft of ideological mooring? The answer often depends on one’s own ideological proclivities, but the question is significant for evaluating Bush’s presidency. In this chapter, I attempt to provide an accessible, wide-ranging, even-handed study of President Bush’s ideology. I consider different ways of trying to conceptualize Bush’s ideology, and I suggest that Stephen Skowronek’s view of Bush as an orthodox innovator of conservatism is the best account. This chapter is thus largely a critical summary of different

Graham G. Dodds

ways of making sense of Bush’s ideology. My intended contribution is to gather together different approaches, compare them, and evaluate them. At the outset, it might be noted that the question of Bush’s ideology might strike some as odd, given the somewhat popular perception of Bush as a shallow figure. As Bill Keller of the New York Times wrote, “to put it generously, Mr. Bush is not himself an intellectual... he is not a deep thinker, a student of ideas, or even a very curious man.”1 And Bush speechwriter David Frum said, “conspicuous intelligence seemed actively unwelcome in the Bush White House.”2 According to Frum, “Bush’s political vision was unclear. He was a politician of conservative instincts rather than conservative principles. He knew in a general way what he believed and what he did not.”3 The above descriptions are controversial and perhaps just crude caricatures. And presidential speech-writer John Podhoretz has argued that Bush was smarter and more effective than his critics claimed.4 More important, there is a difference between intellectualism and ideology; the absence of the former is no predictor of the absence of the latter. For some of his critics, Bush’s quick decision-making suggested a lack of careful consideration, which indicated fecklessness or being unprincipled. But that sort of confident, quick decision-making may also be indicative of principled ideological commitment, as if Bush had a core set of beliefs and values (i.e., an ideology) that permitted such short-cuts. In other words, even those who are inclined to belittle Bush’s intellectualism might do well to consider his ideology.

POLITICAL SCIENTISTS ON IDEOLOGY In political science and related fields, there are several main ways to gauge ideology, and it may be useful here to consider three of them. One popular approach is Keith Poole and Howard Rosenthal’s Nominate scores, which locate politicians on an ideological spectrum by examining their public positions on congressional votes. Politicians are placed on a scale that runs from -1 or very liberal to +1 or very conservative. Bush’s score of +0.723 in 2004 (on the Common Space version of DW-Nominate) was significantly more conservative than the median Republican senator and much more conservative than his chief 2000 primary challenger and the 2008 GOP nominee, Sen. John McCain.5 In terms of broader historical comparison, Bush was supposedly the single most conservative president ever. President Eisenhower Nixon Ford Reagan G. H. W. Bush G. W. Bush Source: Silver, 2011.

DW-NOMINATE Common Space Score + .302 + .563 + .538 + .703 + .580 + .723

The Ideological Character of George W. Bush

DW-Nominate scores offer an easy way of assessing an individual’s ideology, but there are a number of problems with them. First, as Nate Silver has noted, “The positions that presidents advocate on Congressional roll calls can be subject to a number of tactical considerations, and may not be entirely representative of their ideology.”6 Second, since DWNominate scores are based only on congressional votes, they cannot capture relevant “personal or symbolic factors,” such as perceptions about a president’s character or willingness to compromise.7 Third, DW-Nominate scores might not adequately capture changes over time. As Michael Bailey explains: in the 1960s we know politicians moved left. At the start of the decade, politicians debated fairly mild civil rights reforms in the face of Jim Crow laws; by the end of the decade, politicians debated how aggressively students should be bused to promote desegregation. But if you look at the NOMINATE scores … you see nothing of this… There is huge movement but you see none of it in NOMINATE scores.8

For this reason, Bailey says that DW-Nominate scores cannot capture ideological change; “if we really want to talk about ideological change, we need to keep track of policies and where politicians move on these policies.”9 In another effort to represent a president’s ideology, Adam Bonica’s “Database on Ideology, Money in Politics, and Elections” (DIME) draws on over 100 million political contributions made over several decades to arrive at an ideology score. The intuition is that if a candidate receives a lot of money from social conservatives, for example, then it probably means the candidate is socially conservative. According to Bonica, Bush is to the right of his father but slightly left of Reagan.10 This approach makes use of a great deal of data, but it arguably fails to distinguish between sincere and strategic giving, and it might also have trouble with comparisons over time, given the changing legal landscape of campaign finance. In yet another effort at capturing ideology, “OnTheIssues” reviews dozens of public statements on ideologically relevant issues and locates politicians on a 2-dimensional grid that runs from liberal to conservative and from populist to libertarian. It classifies Bush as a “moderate conservative,” as compared with his father the “libertarian-leaning conservative” and Reagan the “populist-leaning conservative.”11 This method has the advantage of focusing on ideologically salient issues, but it might have the shortcoming of failing to distinguish public political pronouncements from true personal beliefs. Unsatisfied with the three methods of fixing ideology noted above, Nate Silver has averaged them and placed the results on a scale from 0 or moderate to 100 or conservative. Using this method, Silver accords Bush a conservative score of 46, which is somewhat to the right of Reagan, substantially to the right of Gov. Mitt Romney and Sen. John McCain, and significantly to the right of Jeb Bush (37) and George H. W. Bush (33).12

BUSH ON HIS IDEOLOGY The representations of ideology noted above provide a good starting point for assessing Bush’s ideology, but they lack sufficient substantive content or have other problems. It is one thing to say that Bush was more conservative than his father, but what does that mean in terms of policy and impact? One might seek to fill in some of the details, say by examining

Graham G. Dodds

what Bush himself said about the matter. Bush vowed not to be defined by others, so it seems appropriate to look to what he himself said about his ideology. On multiple occasions Bush declared, “I am a conservative,” but of course his ideology is more complicated than his allegiance to that label. In his 1999 campaign book A Charge to Keep, Bush elaborated on why he identified as a conservative: I am a conservative because I believe in the worth and dignity and power of each individual. My philosophy trusts individuals to make the right decisions for their families and communities, and that is far more compassionate than a philosophy that seeks solutions from distant bureaucracies. I am a conservative because I believe that government should be limited and efficient, that it should do a few things and do them well… I am a conservative because I believe government closer to the people governs best.

That sounds more like a creedal affirmation than an explanation of sincere views, but as a declaration of principles it is important. Other aspects of Bush’s first presidential campaign are also telling of his ideology. For example, Bush campaigned in 2000 as a “compassionate conservative,” which he explained as follows: I am a compassionate conservative, because I know my philosophy is optimistic and full of hope... Government must be limited and focused, but it has an important job within its bounds. Government is too often wasteful and overreaching. But we must correct it and limit it, not disdain it. I differ from those who want to dismantle government down to the last paperclip… The federal government has some compelling purposes… But in some cases the job is best done not by government itself, but by directing government resources to neighborhoods and parents and schools and faith-based institutions that shape values and change lives.

For some, this was an echo of his father’s claim to a “kindler, gentler” conservatism. But others saw it as a clumsy façade intended to mask real conservatism or make it more palatable. For example, Stephen Skowronek termed compassionate conservatism “ideological obfuscation.”13 And David Frum quipped that Bush’s “compassionate conservative … sounded less like a philosophy than a marketing slogan: Love conservatism but hate arguing about abortion? Try our new compassionate conservatism – great ideological taste, now with less controversy.”14 Another aspect of the 2000 campaign that might be telling of Bush’s ideology is his repeated invocation of his background in Texas. Bush often spoke about his upbringing in West Texas, where his family moved from Connecticut when he was two years old. For some, this was a way for Bush to make a distinction between the moderate Republicanism of the Northeast and the conservatism of the Sunbelt. More concretely, it was a way for Bush to assure conservatives who never forgave his father for betraying his “no new taxes” pledge that the Texas scion of the patrician clan was a more trustworthy conservative. Bush’s identification with Texas might have pleased conservatives, but for his opponents it was cause for criticism. For example, Michael Lind contends that Bush’s policies can be understood best in terms of the political culture of western Texas, which Lind characterized as follows: “George W. Bush grew up in what may very well have been, apart from black-belt

The Ideological Character of George W. Bush

counties in Alabama, Mississippi, Georgia, and South Carolina, the most reactionary community in English-speaking North America.”15 Another aspect of Bush’s biographical connection to Texas that influenced the 2000 campaign was his record as Governor, which his campaign highlighted via the slogan “A Reformer with Results.” However, some critics charged that Bush’s record of bipartisan appeal was misleading, since Texas Democrats were so conservative. And regardless of the nature of Bush’s record in Texas, there’s the issue of its relevance. Peter Burka of the Texas Monthly contends that as governor, Bush was a uniter who worked with Democrats, appointed centrists, and “refused to kowtow to the far right,” which was “his enemy, not his ally.” “But when he reached the White House, Governor Bush vanished, to be replaced by President George W. Bush – a person I didn’t recognize.”16 Another aspect of Bush’s 2000 campaign that attracted a lot of attention was his overt religiosity. Bush was raised as a Methodist but appealed to voters from other religious backgrounds, particularly Christian conservatives. He often spoke publicly of his faith, especially after he turned forty and stopped drinking alcohol. In a 2000 GOP debate, Bush appeared to court religious voters when he said that his favorite philosopher was Jesus Christ. Bush’s connection to religious voters came up again more strongly in 2004. In early 2004, Rich Lowry of the National Review noted Bush’s strong connection with evangelicals, saying “The Bush presidency should be stamped: ‘Brought to you by orthodox Christian believers.’”17 And many commentators attributed Bush’s victory over Sen. John Kerry to Karl Rove managing to get more evangelicals and “values” voters to the polls, even though the electoral data belied that narrative.18 Beyond religion, there is the broader issue of Bush’s connection to the traditional base of the Republican Party. In his book about his father, Bush says that Pat Buchanan’s 1992 primary challenge demonstrated the “importance of consolidating the base.” Indeed, in October 2000 Bush joked at an $800-a-plate dinner in New York: “This is an impressive crowd: the haves, and the have-mores. Some people call you the elite, I call you my base.”19 More importantly, in 2004 Bush “reached out early” to “disgruntled factions of the party.”20 And by some accounts, Bush’s 2004 campaign aimed more at maximizing support among his base than persuading independents.

BUSH’S APPOINTMENTS Beyond Bush’s statements, one might also look to his high-level appointments for an indication of his ideology, as such positions tend to be telling of a president’s deeply-held commitments. Bush’s selection of Dick Cheney as his running-mate was well received by most conservatives, as was his nomination of Sen. John Ashcroft as attorney general. By some accounts, Bush picked Ashcroft to mollify conservatives who were worried about the incoming administration: on December 21, 2000, Pat Robertson characterized conservatives’ concerns with the president–elect by saying, “The trust is growing thin.”21 With regard to Bush’s appointments to the federal judiciary, many would characterize his impact as very conservative or even radical. As journalist Charlie Savage wrote in 2008, “His administration has transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.” Savage

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found that most legal activists shared this assessment, regardless of their own politics. For example, David McIntosh of the Federalist Society said “the nation’s appeals courts were now more in line with a conservative judicial ideology than at any other time in memory.” And Nan Aron of the Alliance for Justice said, “George W. Bush has made great strides in cementing the ultraconservative hold on the federal courts which began with Ronald Reagan.”22

BUSH’S POLICIES Beyond Bush’s own words and appointments, one might look to his public policies in order to gauge his ideology. Bush is perhaps best known for his muscular foreign policy after the 9/11 terrorist attacks, but his main domestic programs also provide a good indication of his ideological position. For example, Bush often invoked a “a culture of life,” a term used by Pope John Paul II and others to oppose abortion, the death penalty, and war. For Bush, this was a way to frame pro-life policies, and indeed Bush reinstated anti-abortion measures that Bill Clinton had rescinded, he signed into law the Partial Birth Abortion Ban and the Unborn Victims of Violence Act, and he restricted stem cell research. Early in his first term, Bush issued an executive order to create the White House Office of Faith-Based and Community Initiatives (OFBCI), whereby religious institutions could deliver social services that formerly were the exclusive province of government. The office was ostensibly driven by the president’s “compassionate conservative” orientation, but critics charged that it violated the separation between church and state. Bush also called for an “ownership society,” which would entail the private investment of social security funds. For Bush, this was a way to harness the power of the market, though critics saw it as a cynical ploy to eliminate part of the legacy of the New Deal. In his 2004 State of the Union speech, Bush pushed to partially privatize Social Security, and the issue was a priority early in his second term, but the proposal failed in 2005. One of Bush’s more clearly ideological policies was tax cuts. Bush enacted two main rounds of tax cuts during his first term: $1.35 trillion via EGTRRA in 2001 and $350 billion via JGTRRA in 2003. Bush’s initial tax cut lowered the tax rate for income, capital gains, and dividend income, with a lot of the benefit going to the wealthiest families. According to one study, “The ink was not dry on the 2001 tax cut before conservatives began calling for an extension of parts of EGTRRA and reductions in corporate and capital gains taxes.”23 In a discussion after the 2002 midterm elections with Dick Cheney, Karl Rove, and Paul O’Neil about the possibility of another round of tax cuts, Bush expressed some hesitation: “Haven’t we already given money to rich people? ...shouldn’t we be giving money to the middle?”24 Bush overcame his hesitation, and after five months of aggressively pushing for legislation, he signed the second round of cuts into law. In terms of environmental policy, most environmentalists were sharply critical of Bush. He reneged on a promise to regulate carbon dioxide emissions, permitted oil companies to rewrite environmental regulations, backed away from the Kyoto treaty on global warming, weakened the Safe Drinking Water Act, and advocated drilling for oil in the Arctic National Wildlife Refuge (ANWAR). In the final days of Bush’s presidency, Sierra Club spokesperson

The Ideological Character of George W. Bush

Josh Dorner lamented, “He has undone decades if not a century of progress on the environment.”25

POLITICIANS AND JOURNALISTS The policies noted above suggest that Bush fits comfortably within the traditional conservative paradigm. However, the picture gets murkier when one examines what conservatives and liberals had to say about Bush’s ideology. Other Republicans articulated varying criticisms of Bush’s ideology. For example, after serving in Congress as a Republican for 26 years, Sen. Jim Jeffords of Vermont switched his party affiliation in 2001, giving Democrats control of the Senate. Jeffords had profound disagreements with Bush and felt that moderates no longer had a place in the Republican Party: “Increasingly, I find myself in disagreement with my party.” Jeffords’s complaint was echoed by various other moderate Republicans, such as Christine Todd Whitman. However, most other Republican complaints about Bush characterized him as insufficiently conservative. For example, David Frum noted, “For all his reputation on the Left as a right-wing ogre, and for all his fabulous post-9/11 popularity among the conservative rank and file, Bush had not won the unquestioning support of the conservative intelligentsia.”26 Some conservatives said Bush was not a real conservative, largely because of the growth in the size of government. For example, in a 2002 article with the Cato Institute, Veronique de Rugy complained about the growth of government under Bush, saying, “it looks like President Bush is less conservative than President Clinton.”27 Similarly, a 2003 Cato bulletin criticized Bush’s spending, saying “Bush has expanded a wide array of ‘compassionate’ welfare state programs.” The report concluded, “Bush has thus far shown no leadership on spending reform.”28 Writing in The American Conservative in late 2003, Doug Bandow presented “the conservative case against George W. Bush.” He claimed, “The charge that he’s a crazy right winger is beyond silly. Other than tax cuts virtually nothing of conservative substance has happened. Government is more expansive and expensive than before.” Bandow continued, “this president deserves to be criticized. Sharply. By anyone who believes in limited, constitutional government…despite occasional exceptions, the Bush administration … has been promoting larger government at almost every turn.”29 Three years later in the same journal, Jeffrey Hart challenged Bush’s conservative credentials, saying, “the media calls him a conservative, yet there is nothing at all conservative about his policies.” Hart’s concern was that the name of conservatism not be sullied by association with what he saw as Bush’s failed presidency, but he could find no other ideological label for the president: “The problem is that he is generally called a conservative, perhaps because he obviously is not a liberal. It may be that Bush, in the magnitude of his failure, defies conventional categories.”30 In 2007, Pat Buchanan suggested that Bush was indeed an ideologue, but his chief ideological commitment was not to conservatism but rather to “democraticism,” which Buchanan defined as “the ideological conviction that all children are endowed with the capacity to learn through the high school level,” even though “reality is otherwise.”31 Thus, in Buchanan’s telling, Bush was a foolish egalitarian.

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In a March 2011 piece in Forbes, Daniel Mitchell argued that Bush “was no conservative.” Mitchell said, “During Bush’s tenure, we got the no-bureaucrat-left-behind education bill, two corrupt farm bills, a new prescription drug entitlement, two pork-filled transportation bills, an auto company bailout, and a TARP bailout for banks. This was a time of feasting for special interest groups and lobbyists, to put it mildly. If that’s conservative, then Ronald Reagan was a liberal.”32 That same month, Mark Levin charged that “Bush’s record, at best, is marginally conservative, and depending on the issue, worse.”33 In response, Peter Wehner wrote in Commentary that Bush was very much a Reaganesque conservative. Comparing Reagan and Bush, Wehner contended that “Bush’s record, based on objective conservative yardsticks, stacks up quite well against Reagan’s.”34 Some of these conservative complaints might be dismissed as being unrepresentative or narrow or strategic, but altogether they constitute a striking dissent and call into question the facile labeling of Bush as a doctrinaire conservative. Although a president is likely to engender some criticism even among his strongest supporters, the tone and volume of conservative criticisms such as these cannot be easily dismissed. Not surprisingly, Bush came in for more robust and consistent criticism from those on the left, but even there his identity as a conservative was sometimes in question. For example, in March 2002, Bill Keller sought to describe the political soul of Bush. Keller declared, “Mr. Bush is emphatically not from the libertarian school of conservative thinking,” he was not entirely in league with “the cultural warriors of the Christian right,” nor was he exactly “a classic, big-business conservative.” Instead, “Mr. Bush is an activist, deficit-spending, interventionist president.” Keller argued that Bush was fundamentally a “moralist,” driven to further his principles domestically and abroad.35 Nine months later, Keller delivered another assessment of Bush’s ideology. In an article entitled “The Radical Presidency of George W. Bush,” Keller revised his view that Bush did not fit squarely with the main strands of conservatism: I began this exercise inclined to think of Bush as Reagan Lite – that is, a president with shallower, unschooled instincts in place of the older man’s studied, lifelong convictions... Perhaps, I’d have said, he is a bit of a Reagan poseur... I ended my research more inclined to think that Bush is in a sense the fruition of Reagan, and that – far from being the lightweight opportunist of liberal caricature or the centrist he sometimes played during his own election campaign – he stands a good chance of advancing a radical agenda that Reagan himself could only carry so far. Bush is not, as Reagan was, an original, but he has adapted Reagan’s ideas to new times, and found some new language in which to market them.36

Keller then described Bush’s vision for America as follows: … markets unleashed, resources exploited. A progressive tax system leveled, a country unashamed of wealth. Government entitlements gradually replaced by thrift, selfreliance and private good will. The safety net strung closer to the ground. Government itself infused with, in some cases supplanted by, the efficiency and accountability of a well-run corporation. A court system dedicated to protecting property and private enterprise and enforcing individual responsibility.37

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On balance, I find Keller’s later understanding of Bush’s ideology to be persuasive.38 But there is something to the criticisms of conservatives that suggests some real tension with aspects of conservative orthodoxy.

PIECES THAT DON’T FIT Some of the political and journalistic considerations noted above add helpful substantive dimensions to the more academic accounts of Bush’s ideology, but they raise concerns about conflating campaign statements with governing reality and also about how to account for the bias of Bush’s critics and defenders. And as the disparate views noted above indicate, there is no clear consensus about Bush’s ideological character. Insofar as people’s ideological commitments change over time and might not ever be entirely consistent, it might be unrealistic to place Bush’s ideology in any particular box. But there are aspects of Bush’s presidency that seem particularly in tension with the rest of it. The conservative complaints about the growth of government under Bush point to one area in which his presidency failed to realize a basic conservative value, but there are other examples of Bush policies that seem at odds with traditional conservatism. For example, Bush’s “No Child Left Behind” Act established a significant federal role in what had always been a state or even local policy area, so it went against the traditional conservative aversion to federal interference. The act passed with large bipartisan majorities and was supported by liberal icons such as Sen. Ted Kennedy. Bush’s advocacy for the policy was ostensibly based on a commitment to racial fairness, as he said, No Child Left Behind was “a piece of civil rights legislation.” Bush was reportedly concerned about the chronically low performance of minority students in poor school districts, and he criticized the ambiguous standards that permitted weak schools to promote students without ensuring they really learn, via “the soft bigotry of low expectations.” Bush’s attitude is striking, as many would argue that concern with the difficulties faced by poor minorities has seldom been a priority for the party of Lincoln. (Some critics charged that the reform was really intended to weaken teacher’s unions.) A second policy that does not easily comport with traditional Republican priorities was AIDS funding in Africa. Conservatives tend to oppose spending taxpayer money abroad (except for defense), but the President’s Emergency Plan for AIDS Relief (PEPFAR) program of 2003 committed $15 billion over five years to address HIV-AIDS in Africa. In 2007, Bush called for an additional $30 billion over the next five years. Conservatives resisted aspects of the program, but it succeeded in helping millions of people receive anti-retroviral medicine. It has been praised by many Democrats, political activists, and celebrities, and today Bush’s supporters routinely invoke it in defending his presidency. A third policy that was perhaps at odds with conservative norms was immigration. In 2004, Bush announced his support for a guest worker program for certain immigrants, a policy opposed by many conservatives. In a message to Congress, Bush said the U.S. immigration system was broken and that the millions of undocumented workers posed a potential security problem. But Congress could not agree on legislation. In 2007, Bush made another push for immigration reform – seeking to strengthen the border while creating a

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temporary worker program and a path to citizenship for illegal aliens – but he was again unsuccessful, as the issue remained a divisive one for Republicans. Fourth, there is the Troubled Asset Relief Program (TARP) of 2008, which authorized the expenditure of $700 billion to prop up troubled financial institutions. In Bush's autobiography Decision Points, the life-long free market supporter ends with his decision to “set ideology aside to prevent an economic collapse” by endorsing government intervention. Bush wrote, “It flew against all my instincts. But it was necessary to pull the country out of the panic. I decided the only way to preserve the free market in the long run was to intervene in the short run.”39 As Bush explained his actions two years later in an interview, “Do you adhere to your philosophy and say, let them fail?” As Bush summed it up, “The lesson there is that I had to set aside an ideology.”40 Bush’s remarks about TARP suggest a strand of pragmatism and perhaps also an acknowledgement of the limits of conservatism as a governing ideology. Any presidency is apt to have a few policies the deviate somewhat from entrenched orthodoxies and ideological purity, but the examples noted above suggest that Bush had more than a few such unusual policies.

MAKING IT ALL FIT: SKOWRONEK ON POLITICS AND IDEOLOGY In order to arrive at a plausible aggregate assessment of Bush’s ideology while also accounting for the pieces that seem not to fit, it might be useful to consider one of the more popular academic authors on American political development and the presidency, Stephen Skowronek. In his 1993 book The Politics Presidents Make, Skowronek describes “recurrent structures of presidential authority” or ways of characterizing presidents’ stance vis-à-vis established political commitments.41 He generates a typology by asking whether established political commitments are resilient or vulnerable and whether the president is affiliated with or opposed to them. The resulting 2X2 grid yields four distinct political contexts and hence presidential leadership situations that recur over the years. Presidents in the same category face similar contextual challenges and opportunities, even though their political resources and the nature of popular political commitments may differ, such that one can compare presidents in the same box, even if they are separated by many generations. In Skowronek’s terms, Bush was in the typology of “articulation,” in which the political commitments of Reagan-esque conservatism were still fairly strong and the president was affiliated with them. (According to Skowronek, “Politically speaking, American is still working its way through the Reagan era”).42 Obviously, presidents who share popular political views tend to get elected, but they also face the challenge of honoring established commitments while adapting them to meet changing circumstances; they must adhere to the past while remaining relevant in the present. For Bush, this meant adapting decades-old conservative commitments to the twenty-first century. Recall Bill Keller’s description of Bush: “he has adapted Reagan’s ideas to new times, and found some new language in which to market them.” In short, Bush was what Skowronek calls an “orthodox innovator,” someone who tinkers at the edges of dominant norms in order to maintain and extend them. I am not the first to apply Skowronek’s typology to George W. Bush. Indeed, Skowronek himself has done so on several occasions. In a 2005 article, Skowronek described Bush’s

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presidential stance in terms of “leadership by definition.” That characterization accords with well-known Bush declarations like “I don’t do nuance” and “I am the decider.”43 But in Skowronek’s terms, Bush’s political stance “renounced flexibility in the name of commitment” and “this was the stance of a leader affiliated with … the party that has set the current parameters of American national government.”44 Skowronek says, “It is tempting to interpret this as the leadership posture of a hard-line ideologue. There is certainly something of the ideologue in Bush, but the label misses as much as it clarifies.”45 For Skowronek, Bush was not a conservative ideologue, he was an orthodox innovator of conservatism. In particular, Skowronek suggests that Bush advocated some policies that did not obviously fit with conservatism because they were ways in which he was trying to adapt or expand conservatism. As Skowronek explains: compassionate conservatism was more than a simple return to orthodoxy. Among other things, Bush has added federally supported education programs, prescription-drug entitlements, faith-based welfare provisions, a stepped-up battle against AIDS, a seemingly progressive initiative to “save” Social Security, and a moderate proposal for immigration reform. Presumably, orthodoxy was to be the foundation upon which this expansive superstructure would be raised.46

Thus, Skowronek’s characterization of Bush’s ideological orientation has the advantage that it can explain the pieces that do not easily fit on other interpretations. His overall account is persuasive, and by explaining how several apparently anomalous policies in fact fit with Bush’s ideological orientation, it does more than the other interpretations considered here. However, it is worth considering an objection to the idea that the anomalous policies flowed from the efforts of an orthodox innovator to alter and expand the regime. Maybe the pieces that do not fit are not due to the tinkering of an orthodox innovator but rather to simple calculations of strategy. In other words, maybe Bush was consciously pushing some issues that did not fit with conservatism and in fact were from his political opponents, just for reasons of narrow political maneuvering. This basic claim enjoys some popularity, but there are different versions of it. Journalist Cokie Roberts put it this way: “The president is copying his strategy right out of Bill Clinton’s political playbook: When in doubt, steal your opponent’s best ideas. Clinton filched welfare reform and a balanced budget from the GOP, Bush robbed education reform and prescription drugs from the Democrats.”47 In another formulation of this explanation, an editorial in the St. Petersburg Times during the 2000 campaign noted, “Taking a page of Bill Clinton's political playbook, Bush intends to make Medicare, Social Security and education major issues in the campaign. Democrats have long considered these issues their property, and in the past Republicans have regretted going near them. But Bush is confident that he can making them winning issues for Republicans, just as Bill Clinton stole welfare reform and crime from the GOP.”48 And according to Durant et al. Bush sought to use “magnet” issues “to expand the party’s electoral base,” and “the means for doing so were to ‘take away’ policies normally associated with Democrats, popular with some independents, and consonant with shifting demographics in the nation.”49 In short, the anomalous Bush policies that might be explained in terms of Skowronek’s orthodox innovator typology might alternatively be explained in terms of political expediency, such that Bush was more of a flexible Clintonian opportunist than a principled

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conservative innovator. As with much of Bush’s presidency, the choice of which characterization to endorse might depend on one’s own politics. But with that caveat in mind, it may nevertheless be useful to consider Skowronek’s understanding of Bush in some more detail.

INTERPRETATIONS OF SKOWRONEK Other academics have endeavored to apply Skowronek’s typology to Bush. For example, Steven Schier and Robert Durant et al. see Bush as an orthodox innovator of some sort, and John Herbert contends that Bush’s record closely matches that of an orthodox innovator: “Repeatedly, Bush’s proposals challenged core conservative values, generating consternation within his party and the broader movement.”50 Herbert also argues that the deck was stacked against Bush’s ambitions, as structural factors like the advanced age of the conservative regime doomed significant changes to failure. Herbert’s concern with the strength of the conservative regime is addressed by other academic interpreters of Skowronek’s typology. For example, Giedre Pranaityte claims that the overall political context of Bush’s presidency changed in his second term, as it went from articulation to disjunction: “Bush starts his presidency as an orthodox innovator but later his leadership style changes in relation to the erosion of the governing regime… from the politics of articulation to the politics of disjunction.”51 In other words, she contends that conservatism fell into such disrepute in Bush’s later years that his place in Skowronek’s typology changed. Like Pranaityte, Gerard Magliocca also perceives a change in Bush’s position within Skowronek’s typology due to the decline of conservatism: circumstances beyond his control forced him to act as an affiliated and as a reconstructive leader at the same time. In one sense, he was a typical Stay the Course president who took control of a conservative majority forged by Ronald Reagan… Yet the Bush administration also made claims of executive power that invoked the spirit of departmentalism… This unusual combination of deferential and transformative impulses within a single presidency is inconsistent with the rather rigid categorization of leaders in Skowronek’s theory.52

EXPLAINING THE PROBLEMS Stepping back from the particulars of the academic accounts noted above, the basic idea that Bush was not just a conservative but an orthodox innovator is a very useful one. But could a Skowronek-like account also explain some of the manifold difficulties that Bush experienced as president? First, some of Bush’s difficulties might be understood in terms of the troubles that orthodox innovators typically face. Although one might think that the politics of articulation should be conducive to political success, given that the president is affiliated with norms that are strong, orthodox innovators actually tend to encounter various difficulties. They are often seen as arrogant or overreaching, their efforts to further the regime are often frustrated, and

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they are often criticized by their own partisans as being insufficiently orthodox, all of which fit Bush’s experience.53 Second, the increasing institutional thickness of government makes it increasingly difficult for presidents of all varieties to do what they want to do. According to Skowronek, the “thickening” of government – the way in which institutional arrangements and governing procedures become more entrenched and resilient over time – impinges upon the ability of the president to be a catalyst for change.54 As a result, even minor innovations within the governing orthodoxy are now harder to enact. Insofar as this aspect of political development is persuasive, it suggests that Bush’s shortcomings were the inevitable result of the political context. Despite his efforts, the status quo proved resistant to change. Third (per the point raised by Herbert, Pranaityte, and Magliocca), maybe Bush’s ideological orientation is well captured by Skowronek’s typology, but his location within it changed because conservatism crumbled. That interpretation has the advantage of making use of the many ways in Skowronek’s account does a convincing job of describing Bush’s ideological stance, while perhaps also accounting for the aspects of Bush’s presidency that Skowronek does not capture. Yet, insofar as conservatism has not altogether collapsed, it is not altogether persuasive. From Bush’s last couple years in office through Obama’s first two years, it seemed plausible that the era of conservatism had ended, as the Republican Party was in poor shape, and the nation elected a liberal Democrat who seemed poised to usher in a new progressive era. However, after the 2010 midterm elections and subsequent developments, predictions of conservatism’s demise seem to have been premature. Fourth, there is the possibility that Bush’s political plans did not go as well as he hoped because outside events intervened. As U.K. Prime Minister Harold Macmillan replied when asked what might alter the well-laid plans of a political leader, “Events, dear boy, events.” Such occurrences can cause havoc for any leader, but this is especially the case for orthodox innovators. According to Skowronek, in order to succeed, orthodox innovators must control events and not just try to deal with them as they come up: since “they come to power with a program, with a formula to implement, they need to press events into the service of enactment of that program.”55 In short, everything must fit the master narrative. Orthodox innovators are “loath to let events point the way and simply move with the situation as it develops. Their authority is not so flexible or open-ended.”56 And Skowronek says that Bush was very much in this mold, as “he refused to allow extraordinary events to interfere with prior commitments and expectations… Events would not define George W. Bush; he would define them.”57 However, events inevitably assert themselves and do not always adhere to the script. As Skowronek explains, “events can be orchestrated to set terms only for so long. With so many competing commitments so precariously balanced against one another, the orthodox innovator sets in motion a program that sooner or later begins to run at the mercy of events.”58 Bush’s presidency had several such significant events, including the Supreme Court’s role in deciding the 2000 election, Sen. Jeffords’s switch, the 9/11 terrorist attacks, and Hurricane Katrina. For Bush, some of these events simply were not amenable to the script of “completing the work of the past.”59 Again, events always pose a challenge for orthodox innovators, but Bush’s experience in this regard was especially challenging. As Skowronek put it in 2005, “This president in particular has had a series of events that haven’t really jived that well with the program that’s to be implemented.”60

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CONCLUSION This chapter has attempted to make sense of George W. Bush’s ideology by reviewing previous attempts to make sense of it. I have suggested that on the whole an explanation that utilizes Skowronek’s idea of orthodox innovation is best. But in addition to the above considerations, there are also questions about the scope of this sort of inquiry. Should we be concerned only with Bush’s own ideology, or perhaps also with that of his broader administration, or how it was perceived by the political parties, the American public, or the global audience? And apart from the question of how Bush’s ideology might best be characterized, there is the question of what its impact has been or what its legacy is. Here also, the evidence is mixed. Bush did not have a prominent role in either the 2008 or 2012 Republican conventions, and GOP nominees John McCain and Mitt Romney both distanced themselves from Bush, yet both also became more conservative, as if Bush were inconsistently conservative. The rise of the Tea Party and the increasing appeal of ostensibly libertarian politicians like Sen. Rand Paul further complicate the question of Bush’s ideological impact and legacy. Bush himself said that the best measure of his presidency would emerge only in the fullness of time. Even in his first year in office, Bush reflected, “There’s no such thing as legacies. At least, there is a legacy, but I’ll never see it.” And in 2006, Bush said, “You never know what your history is going to be like until long after you’re gone.” It may well be true that only time will tell, that even historically mature views are not immutable but rather can change, and that ideology may never be easy to delineate with much specificity. Thus, the view of Bush as an orthodox innovator of conservatism might itself change, as American politics changes.

ENDNOTES Bill Keller, “The Soul of George W. Bush,” New York Times March 23, 2002. David Frum, The Right Man, New York: Random House, 2003, p20. 3 Ibid, p273-4. 4 John Podhoretz, Bush Country New York: St. Martin’s Press, 2004. 5 Sarah Binder, et al., “Where Do They Stand?” New York Times July 26, 2004. 6 Nate Silver, “How Liberal Is President Obama?” FiveThirtyEight April 29, 2011. 7 Jon Pennington, “Is President Obama a Centrist?” www.quora.com Jan. 29, 2014. 8 Quoted in John Sides, “The Challenge of Measuring Political Ideology” The Monkey Cage May 4, 2011. 9 Ibid. 10 Adam Bonica, “Mapping the Ideological Marketplace” American Journal of Political Science Vol. 58, Issue 2 (April, 2014), 367-386. 11 OnTheIssues, http://www.ontheissues.org/George_W__Bush.htm. 12 Nate Silver, “Is Jeb Bush Too Liberal To Win The Republican Nomination in 2016?” FiveThirtyEight Dec. 16, 2014. Beyond the methods noted above, there are also major ideological interest groups that regularly issue report cards for politicians. For example, in 2000, the head of the AFL-CIO in Texas gave Bush a “below zero rating” for labor issues. And in 2003, the League of Conservation Voters (LCV) gave Bush its first “F” ever. 13 Stephen Skowronek, Presidential Leadership in Political Time Lawrence: The University Press of Kansas, 2008, p124. 14 Frum, The Right Man, p6. 15 Michael Lind, Made in Texas: George W. Bush and the Southern Takeover of American Politics New York: Basic Books, 2004, p3. 1 2

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Quoted in Robert Draper, et al., “What I Will Miss About President Bush” New York Times Nov. 2, 2008. Rich Lowry, “Furor over ‘Passion’ is not surprising,” www.gasdentimes.com Feb. 27, 2004. 18 See David Brooks, “The Values-Vote Myth,” New York Times Nov. 6, 2004. 19 CBS News, “Bush and Gore Do New York” Oct. 18, 2000. http://www.cbsnews.com/news /bush-and-gore-donew-york/. 20 Quoted in Peter Baker, “For His Father” New York Times Book Review Dec. 14, 2014, p32. 21 Quoted in Alison Mitchell, “Bush’s Latest Appointments Elate Right; Left Begins to Mobilize Opposition” New York Times. Dec. 23, 2000. 22 Charlie Savage, “Appeals Courts Pushed to Right by Bush Choices” New York Times. Oct. 28, 2008. 23 Mona Lewandoski, Briefing Paper No. 37, Harvard Law School, Federal Budget Policy Seminar, May 6, 2008. http://www.law.harvard.edu /faculty/hjackson/2001-2003TaxCuts _37.pdf. 24 Rebecca Leung, “Bush Sought ‘Way” To Invade Iraq?” CBS News Jan. 9, 2004. http://www.cbsnews.com/news /bush-sought-way-to-invade-iraq/. 25 Suzanne Goldenberg, “The Worst of Times: Bush’s Environmental Legacy Examined.” The Guardian, Feb. 16, 2009. 26 Frum, The Right Man, p152. 27 Veronique de Rugy, “How Conservative is President Bush?” Cato Institute, Aug. 3, 2002. 28 Veronique de Rugy and Tad DeHaven, “On Spending, Bush is No Reagan,” Tax and Budget Bulletin No. 16. Cato Institute, August, 2003. 29 Doug Bandow, “Righteous Anger: The Conservative Case Against George W. Bush.” The American Conservative Dec. 11, 2003. 30 Jeffrey Hart, “Ideology Has Consequences,” The American Conservative Nov. 20, 2006. 31 Patrick J. Buchanan, “Ideology Was Bush’s Undoing,” http://buchanan.org/blog Nov. 27, 2007. 32 Daniel J. Mitchell, “George W. Bush Was No Conservative,” Forbes, March 20, 2011. 33 Mark R. Levin, “The hate for Sarah Palin,” March 14, 2011. https://www.facebook.com /notes/mark-levin/thehate-for-sarah-palin/10150105931685946. 34 Peter Wehner, “Answering Mark Levin’s Challenge.” Commentary. Mar. 17, 2011. http://www.commentary magazine.com/2011/03/17/answering-mark-levins-challenge/. 35 Keller, “The Soul of George W. Bush.” 36 Bill Keller, “The Radical Presidency of George W. Bush; Reagan’s Son” New York Times Jan. 26, 2003. 37 Ibid. 38 Critics who might dismiss Keller’s assessment as biased might consider Keller’s role in acceding to Bush Administration requests not to publish unfavorable news: The New York Times knew about Bush’s secret domestic spying program by the fall of 2004, but Heller decided not to publish the story before the 2004 election. (Byron Calame, “Eavesdropping and the Election: An Answer of the Question of Timing,” New York Times August 13, 2006.) Whether a more timely revelation would have led to a different outcome in November 2004 remains an intriguing counterfactual question. 39 George W. Bush, Decision Points, New York: Crown, 2010 p458-9. 40 Quoted in Dana Milbank, “Nostalgic for George W. Bush.” Washington Post Nov. 10, 2010. 41 Stephen Skowronek, The Politics Presidents Make Cambridge: Belknap, 1997 (originally 1993), p36. 42 Stephen Skowronek 2008, p4. 43 Stephen Skowronek, “Leadership by Definition: First Term Reflections on George W. Bush’s Political Stance” Perspectives on Politics Vol. 3, No. 5 December, 2005, p819. 44 Stephen Skowronek 2008, p133-4. 45 Stephen Skowronek 2005, p820; Stephen Skowronek 2008, p124. 46 Stephen Skowronek 2008, p134. 47 Steve Roberts and Cokie Roberts, “The Nader Factor,” The Fort Scott Tribune May 5, 2004. 48 St. Petersburg Times, “A reassuring introduction” August 5, 2000. 49 Robert F. Durant, et al., “Faithful Infidelity: ‘Political Time,’ George W. Bush, and the Paradox of Big Government Conservatism” Review of Public Personnel Administration 30 (4) (2010), p391. 50 Steven Schier, Ambition and Division: Legacies of the George W. Bush Presidency Pittsburgh: University of Pittsburgh Press, 2009; Robert Durant, et al.; Jon Herbert, “The Struggles of an ‘Orthodox Innovator’” (Chapter in Joel D. Aberbach and Gillian Peele, Crisis of Conservatism? New York: Oxford, 2011), p153. 51 Giedre Pranaityte, “The Presidential Leadership of George W. Bush and its Impact on the Erosion of the Conservative Regime” Jan. 30, 2014. http://geopolityka.net/the-presidential-leadership-of-george-bush-andits-impact-the-erosion-of-the-conservative-regime/. 16 17

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Gerard N. Magliocca, “George W. Bush in Political Time: The Janus Presidency,” Law and Social Inquiry Vol. 34, Issue 2 (Spring, 2009), p475. 53 Steohen Skowronek 2008, p140. 54 Stephen Skowronek 2005, p829. 55 Renee Montagne, Interview with Stephen Skowronek, National Public Radio, Nov. 28, 2005. 56 Stephen Skowronek 2008, p140-1. 57 Stephen Skowronek 2008, p137. 58 Stephen Skowronek 2008, p142. 59 Stephen Skowronek 2008, p137. 60 Renee Montagne. 52

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 6

THWARTED REALIGNMENT: GEORGE W. BUSH, THE REPUBLICAN PARTY, AND THE ELECTIONS OF 2000-2008 Michael Nelson Rhodes College, Memphis, TN, US

ABSTRACT The potential Republican realignment that began with Richard Nixon’s election in 1968—the first in a series of ten presidential elections of which the GOP won seven— and accelerated with the Republican capture of Congress in 1994 was fostered through the party-building efforts that George W. Bush led in 2002 and 2004. But administration failures during Bush’s second term thwarted the realignment process.

The final two elections of George W. Bush’s presidential career—the midterm election of 2006 and the presidential and congressional elections of 2008—were catastrophic for his party. In 2006 the Republicans lost thirty seats in the House of Representatives and six in the Senate, which relegated them to minority status in both chambers for the first time since 1994. In 2008 the Republican nominee for president was soundly defeated and the GOP lost twenty-four additional House seats and eight more in the Senate. Republicans had entered Bush’s second term in control of both elected branches. They left it controlling neither. What made these losses worse for the Republican Party was that it had been on a steep upswing in the years preceding these elections, a climb from minority status that accelerated during the first three elections of Bush’s presidential career: 2000, 2002, and 2004. Indeed, the party seemed headed toward enduring majority status. Yet the Republican president who worked hardest to achieve this result was also the president who caused his party’s progress to grind to a halt. After briefly tracing the Republicans’ rise to parity with the Democrats during the latter half of the twentieth century, this chapter focuses on the first three elections of the new millennium and their aftermath during Bush’s second term.

Michael Nelson

THE REPUBLICANS’ RISE TO POLITICAL PARITY The New Deal Democratic coalition that Franklin D. Roosevelt constructed during the 1930s was a complex assemblage, constituted differently in different parts of the country. In the South, it consisted of nearly every white voter–that is, of nearly everyone who was allowed to vote in the Jim Crow era. Outside the South, it rested on the support of groups that Roosevelt had helped to attract into the Democratic fold: blue collar workers, especially union members; Catholic and Jewish voters, many of them with strong southern and eastern European ethnic loyalties; ideological liberals; and African Americans. A crack appeared in the New Deal coalition in 1952. The Republican candidates in the next three elections (Dwight D. Eisenhower in 1952 and 1956 and Richard Nixon in 1960) did well in the six states of the Outer South, whose metropolitan areas had begun to grow rapidly after World War II, making the GOP’s pro-business policies newly appealing. In 1964, Sen. Barry Goldwater swept the five Deep South states, based largely on his opposition to strong civil rights legislation. The only other state Goldwater carried in losing overwhelmingly to President Lyndon B. Johnson was Arizona, his home state. The 1968 election took place in a changed political environment. Because of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, both of them championed by Johnson, African Americans in the South were newly enfranchised and enjoyed federal protection against many forms of racial discrimination. In reaction, a strong southern Democratic opponent of civil rights, former Alabama governor George C. Wallace, bid for the support of southern whites and northern blue-collar workers who felt threatened by these changes and by a host of other recent developments, especially rising street crime. Richard Nixon, the Republican nominee, carried most of the Outer South in 1968, and Wallace nearly swept the Deep South.1 The Democratic nominee, Vice President Hubert H. Humphrey, carried just one southern state. During his first term as president, Nixon labored to bring the 14 percent of voters who supported Wallace into his 1972 reelection coalition. Nixon’s use of issues such as law and order and opposition to school bussing to graft white southern and Catholic working-class Democrats onto the traditional middle-class Republican base was successful. He swept the South and, with support from 52 percent of Catholic voters and 54 percent of union members and their spouses, he swept the rest of the country as well, losing only one state. Republican growth among erstwhile white Democrats was interrupted by the Watergate crisis, culminating in Nixon’s resignation in 1974 and former Georgia governor Jimmy Carter’s narrow election in 1976. Its resumption owed much to Ronald Reagan, who was elected president in 1980. To spur economic expansion, Reagan secured massive income tax reductions, which appealed not just to well-to-do Republicans but also to many blue collar workers, who increasingly had come to believe that instead of benefiting from most federal social programs they were footing the bill for welfare recipients who did not want to work.2 Reagan also called for economic deregulation, a cause that united large corporations with small businesses. In the past, labor unions would have persuaded their members that Reagan’s policies were not in workers’ interest and ought to be opposed. But unions, which had represented around 40 percent of the American work force in 1950, represented only 20 percent in 1980, with further declines to come.

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Reagan’s appeal to the voters went beyond economic conservatism. To restore America’s position in the world, he promised dramatic increases in defense spending and a more assertive posture toward the Soviet Union in the ongoing Cold War. Many southerners, whose regional economy relied in part on military bases and defense contractors, and many northern ethnic voters, whose ancestral homelands in Eastern Europe had been occupied by the Soviets since World War II, embraced his positions. Reagan’s strong rhetoric opposing abortion and upholding traditional values rallied not just Catholics but also white evangelical voters, who had not been especially active in politics during much of the twentieth century. But despite Reagan’s easy reelection in 1984 and the election of his vice president, George Bush, to succeed him in 1988, the Republicans still could claim only to have drawn even with the Democrats. Congress remained strongly Democratic and, after one term, Bush was defeated in 1992 by Gov. Bill Clinton of Arkansas. Clinton’s victory cheered the Democrats temporarily, but the chief political legacy of his presidency was his party’s loss of Congress, which the Democrats had dominated for forty years, in 1994. Despite being reelected in 1996, Clinton governed with a Republican Congress for his final six years as president. The main reason for this partisan reversal on Capitol Hill is that the success of Republican presidential candidates in the South began to be echoed in other southern elections, especially those for Congress. The infusion of millions of loyally Democratic African American voters into the southern electorate in the late 1960s had made the party more liberal and driven many conservative whites into the Republican ranks. Subsequently, the GOP’s economic, social, and national security conservatism joined racial conservatism as the party’s main lure in the region. The number of Republican senators in the twenty-two member southern delegation rose from none as late as 1960 to fourteen in 1998. Similar gains occurred in southern House elections, where the Republican ranks grew from 7 percent of representatives in 1960 to 56 percent in 1998.

THE ELECTIONS OF 2000 At the September 2000 meeting of the American Political Science Association, seven political scientists forecast the outcome of the presidential election using models that incorporated measures of economic growth and presidential approval. They unanimously predicted that the Democratic nominee, Vice President Al Gore, would win by a margin of anywhere from 6 to 20 percent of the major-party popular vote. For four years the economy had grown at an annual rate of at least 4 percent and Clinton’s job approval rating had stayed above 60 percent. Like eight of the nine postwar vice presidents who sought their party’s presidential nomination, Gore won it in 2000. Along with the growing prominence and influence of his office, the Twenty-second Amendment, which in 1951 imposed a two-term limit on presidents, lent him the same advantage it had lent to other recent vice presidents. The twoterm limit made it possible for the vice president to step forward as a presidential candidate early in the president’s second term rather than wait in the wings until the president decided what he wanted to do.3 But vice presidents carry burdens into the general election that are as firmly grounded in their office as the advantages they bring to a nominating contest. Years spent fertilizing the

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party’s grassroots with fervent rhetoric can help secure the nomination but may alienate those who look to the presidency for leadership that unifies rather than divides. Gore’s blurt to a post-impeachment rally of Democratic congressmen that Clinton “will be regarded in the history books as one of our greatest presidents” doubtless roused the spirits of his fellow partisans, but it seemed wildly excessive to almost everyone else.4 As with Gore’s capture of the Democratic nomination, George W. Bush’s march to the top of the Republican ticket followed the modern script closely. Service as governor of a state had become the other leading stepping stone to a presidential nomination, supplanting the Washington experience that previously had been essential in the postwar era.5 Starting with Carter in 1976, governors benefited politically from the nation’s post-Watergate antiWashington mood, as well as from the value voters placed on the experience governors gain as chief executives. Governors who ran for president also found it easy to raise a great deal of money in their own states, much of it from contractors who do business with the state government. In 2000 Governor Bush raised so much money for his nomination campaign, both in his home state of Texas and from his father’s national network of supporters, that he was able to eschew federal funding and ignore the ceiling on spending that comes with it. Because Clinton and the Republican 104th Congress had removed welfare-bashing from the GOP playbook by enacting the Welfare Reform Act of 1996, Bush was able to seek the party’s nomination four years later as a new-style “compassionate conservative.” Specifically, he argued the federal government could most effectively address the problems that afflict poor people by subsidizing church-sponsored social services. Gore’s main theme in the fall campaign was that he was not Clinton, a reversal of his prenomination stance. Gore rejected Clinton’s repeated offers to campaign, which party leaders pleaded with him to accept. Even worse, instead of emphasizing the prosperity that had marked the Clinton years, Gore ran a populist-style, “people, not the powerful” campaign more appropriate for a candidate challenging an incumbent in economic hard times than for a vice president seeking to extend his party’s control of the presidency in good times. Gore’s strongest political advantage in 2000 was his ability to ask the voters: If eight years of Democratic leadership has produced peace and prosperity, why elect a Republican? But at the Democratic convention and afterward, Gore chose not to take that course. Centrist swing voters were the intended audience for the Bush-orchestrated Republican convention. Other than Bush and his vice presidential running mate, Richard Cheney, nearly all of the speakers who were featured in prime time were African Americans, Latinos, women or, in one case, a gay Republican member of Congress. Bush’s main purpose in choosing these speakers was to assure moderate and independent voters that he was not a conservative extremist. For example, as domestic policy adviser Margaret Spellings points out, Bush “talked about education reform when the standard Republican orthodoxy was: abolish the Department of Education.”6 The closeness of the election, which remained unresolved until December 12 when the Supreme Court’s decision in Bush v. Gore ended the process of recounts and litigation that had kept Florida’s twenty-five electoral votes in suspense, underscores how winnable it was for Gore. Gore nearly swept the Northeast, the upper Midwest, and the Pacific Coast. The national exit poll revealed that he ran more strongly among certain demographic groups— including women (54 percent), African Americans (90 percent), members of union households (59 percent), liberals (80 percent), gay and lesbian voters (70 percent), poor and

Thwarted Realignment

working class voters (55 percent), city dwellers (61 percent), voters who seldom or never attend religious services (56 percent), and highly educated voters (52 percent)—than any Democratic presidential candidate since Johnson in 1964.7 But Gore paid a price for his decision to distance himself from the peace and prosperity of the Clinton years. Voters who said that world affairs were what concerned them the most supported the considerably less experienced Bush by 54 percent to 40 percent. As for the economy, although voters who thought it was in excellent condition supported Gore by 53 percent to 46 percent, those who said it was good favored Bush by 53 percent to 38 percent. “More than anything else,” political scientist Gary Jacobson concluded, “Gore’s inability to exploit his biggest asset, the Clinton economy, effectively cost him a clear-cut victory.”8 On the electoral map, Bush won nearly all of the traditionally Republican Plains and Rocky Mountain states. He swept the South, including four states—Arkansas, Florida, Louisiana, and Gore’s home state of Tennessee—that Clinton had won four years earlier. Bush won three of the four border states and Ohio, all of which Clinton had carried in 1996. He also outpaced Gore among some groups of voters that had supported Clinton, such as Roman Catholics (52 percent). Among other groups, Bush did nearly as well among men (53 percent) as Gore did among women. He enjoyed stronger support from white voters (54 percent), college-educated voters (51 percent), and conservatives (81 percent) than any Republican presidential candidate since his father in 1988. Bush’s 35 percent support among Latino voters marked a strong advance from 1996, when GOP nominee Robert Dole received 21 percent. Other major divisions among Bush and Gore voters were economic and, perhaps more important, cultural. A strong correlation existed between voters’ annual income and their support for Bush. His share of the vote rose steadily up the income ladder from those who earned $15,000 or less (37 percent) to those who earned $100,000 or more (54 percent). The more religious voters claimed to be, the more likely they were to vote for Bush: 59 percent of those who attended services at least once a week supported him, compared with 38 percent of those who seldom or never attended. Married women supported Bush (53 percent), as did gun owners (61 percent), self-identified members of the religious right (80 percent), Protestants (63 percent), voters who valued “moral leadership” in a president more than “managing the government” (70 percent), small town and rural residents (59 percent), and opponents of stricter gun control laws (74 percent) and legalized abortion (71 percent). Partly because he had his hands full waging his own campaign, Bush’s narrow victory was accompanied by mixed results in the accompanying congressional elections. Democrats gained one seat in the House, not enough to retake control of that chamber, and five seats in the Senate, creating a 50-50 division that made Vice President Cheney’s tie-breaking power decisive. For the first time since 1952, a Republican president governed with a Republican Congress—at least for a few months. In May 2001 Republican senator James Jeffords of Vermont joined the Democrats, giving them a 51-49 majority.

THE ELECTIONS OF 2002 The circumstances of Bush’s narrow and controversial election shadowed him when he entered the White House on January 20, 2001. By September 10, the president’s job approval

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rating was 51 percent, the lowest of any elected president in modern history approaching the eight-month mark of his administration. The September 11 terrorist attacks on New York and Washington ushered in a new phase of Bush’s presidency. Within days his approval rating shot up 35 percentage points, cresting soon afterward at 90 percent. The “rally-‘round-the-flag” effect sparked by the attacks was steeper (Bush’s 35-point jump nearly doubled the previous record), higher (his peak of 90 percent was the highest any president has ever achieved), and longer lasting (Bush remained above his pre-September 11 peak for more than a year) than any in recorded history.9 Because Bush’s surge in popular support was tied to September 11, he was able to able to get his way on nearly all matters relating to national security during the remaining sixteen months of the 107th Congress. Democrats united with Republicans to support the president’s September 20 declaration of a “war on terror” by enacting a resolution authorizing him to “use all necessary and appropriate force” against those involved in any way with the World Trade Center and Pentagon attacks. A year later, in October 2002, Congress approved the president’s request to support the use of force against the Saddam Hussein regime in Iraq “as he determines to be necessary and appropriate.” Every Democrat in Congress who planned to run for president in 2004 voted to endorse Bush’s course in Iraq. Unlike any of his predecessors, Bush experienced both united and divided party government during his first two years in office. The contrast convinced him long before the fall 2002 election campaign that his best strategy for leading Congress was to increase the number of Republican members. He threw himself into the midterm election earlier and more energetically than any president in history. The political challenge that Bush faced as he sought to increase Republican representation in Congress was formidable. In the postwar era, the president’s party had lost an average of twenty-six seats in the House in midterm elections. Since the Civil War, only two presidents had seen their party gain House seats in a midterm election. In 2002 the loss of even six seats would give control of the chamber to the Democrats. Senate elections were more variable, but the average loss for the president’s party in postwar midterms was still four seats. Even worse from the Republicans’ standpoint, their party was more “exposed” in 2002 than the Democrats: twenty Republican seats were at stake, compared with only fourteen Democratic seats.10 Because of retirements four Republican seats—but none occupied by Democrats—were open in 2002, and thus more vulnerable to capture by the opposition party than seats defended by incumbents usually are. As for the president’s party taking control of the Senate away from the other party in a midterm election, that had not happened since 1882. From the start of Bush’s first term as president, he was a party builder. At two important milestones in the term—the first after he was declared the winner of the bitterly contested election of 2000, and the second after the September 11 attacks—Bush was counseled by many political pundits (and Democrats) to govern in a broadly bipartisan manner. On both occasions he refused to do so, choosing instead to pursue, albeit with uneven success, a conservative Republican agenda of cutting taxes dramatically, toughening national educational standards, involving faith-based organizations in the administration of federal social programs, fostering oil production, restricting certain forms of abortion, limiting embryonic stem cell research, developing a national missile defense system, implementing business-friendly regulatory policies, and launching a war on terror that included invasions of Afghanistan and Iraq. To be sure, Bush worked closely with Democrats to enact his No Child Left Behind education reforms. He also adopted some policies traditionally supported by

Thwarted Realignment

liberal Democrats, including expanded farm subsidies, increased tariffs on imported steel and demographically diverse appointments to his staff and cabinet. In making these exceptions, however, his purpose was to increase support for the GOP in particular regions of the country (specifically, the farm belt and the steel-reliant states of Ohio, West Virginia, and Pennsylvania) or among specific groups of voters, especially women and Latinos. Preparing for the 2002 midterm election, Bush recruited strong Republican challengers to incumbent Democratic senators. “Being able to recruit -- to have the power of the White House to lend -- the credibility of the White House to go after somebody, I mean that’s a big thing,” recalls Chris LaCivita, the political director of the National Republican Senatorial Committee in 2002. In every instance but one (John Thune lost very narrowly in South Dakota before running again and winning in 2004), the Bush-recruited Republican nominee was elected. Bush also raised a record $141 million for his party and campaigned ardently for Republican candidates throughout the country. He knew that political campaigning typically reduces the president’s approval rating because it brings his partisanship into sharp relief. But he regarded that as a price worth paying in order to help the Republican Party. The results of the 2002 elections vindicated Bush’s decision to become actively involved in the campaign. The Republicans not only gained six seats in the House, doubling the size of their majority in that chamber, but also added the two seats they needed to take control of the Senate. Political analysts were quick to credit Bush with his party’s success, pointing out that twelve of the sixteen Senate candidates for whom he campaigned were victorious, as were all but two of the twenty-three House candidates he actively supported.

THE ELECTIONS OF 2004 Soon after the 2002 results were in, Bush began to focus on 2004. He instructed his political strategists to plan and execute a campaign that would reelect him and also make the Republican Party “stronger, broader, and better.”11 “Don’t give me a lonely victory,” he reportedly told his political team. “I don’t want what Nixon had. I don’t want what Reagan had.” According to one Bush aide, “He was explicit that he doesn’t want to win with 55 percent and have a 51-49 Senate. He wants to expand the governing coalition.”12 Bush “was a highly partisan leader who relied upon partisan majorities in Congress, on most of the policy initiatives that he cared about, once he became president,” says political scientist, Mark Rozell. “He didn't really see a bipartisan vehicle for moving much of his agenda through, so he needed his victory to be a party victory, not just a Bush victory.” Bush and his campaign team developed and executed a remarkably successful strategy to secure the sweeping Republican victory he sought. But just as important as campaign strategy to Bush and his party’s success, however, were the public policies he pursued as president. In foreign policy, Bush’s declaration of a prolonged war on terror assured that, as was the case during the Cold War but not in the decade afterward, voters would remain continually attentive to national security issues, traditionally the area of greatest Republican electoral strength. When the first president Bush defeated Iraq in the first Gulf War, he portrayed it as an isolated event. When the second president Bush defeated Iraq in the second Gulf War, he described it as merely one campaign in an ongoing war that, like the Cold War, had no clear end in sight.

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Economically, Bush’s strongly pro-business tax and regulatory policies energized both large and small companies to support the GOP more ardently in 2004 than ever before with campaign contributions and efforts to rally their employees.13 He secured a second major tax cut in 2003 after gaining one in 2001 and persuaded Congress to create a new entitlement program that added prescription drug coverage for seniors to Medicare. Finally, Bush successfully identified himself and his party as the chief defenders of traditional social values, both by what he upheld (religious faith, unabashed patriotism, restrictions on abortion) and what he opposed (same-sex marriage, sexual permissiveness, gun control). In contrast to 2000, the Democrats waged a wide open contest for the 2004 presidential nomination. An obscure small-state governor, Howard Dean of Vermont, raced to an early lead in 2003 by “captur[ing] the anger of Americans that, specifically, Democrats, liberals had about the Iraq war,” says political scientist John Geer. At the initiative of senior adviser Joe Trippi, Dean became the first presidential candidate to use both the Internet to raise money through his campaign’s website and Meetup.com “to organize the concentric-circle campaign”: thousands of web-organized local meetings of Dean supporters around the country. “Because of his antiwar stance,” says political journalist Walter Shapiro, the Dean campaign “hit a gusher. I mean, this is what it must have been like to be in Sutter’s Mill in 1848.” Dean entered the January 19, 2004, Iowa caucuses as the frontrunner against a field of candidates who had voted in Congress to authorize Bush to use force against Iraq. But his effort faltered when the inexperienced candidate made several politically off-key remarks— for example, that “the capture of Saddam Hussein has not made America safer.”14 Another Democratic challenger, Rep. Richard Gephardt of Missouri, “attacked Dean in television ads, so Dean attacked back” and, with both candidates discredited, “they end up finishing third and fourth,” notes longtime Democratic campaign strategist Bob Shrum. The Democratic contenders who finished first and second in Iowa were Shrum’s candidate, Sen. John F. Kerry of Massachusetts, and Sen. John Edwards of North Carolina, whom Kerry later invited onto the ticket as his running mate. Kerry’s background in the late 1960s in Vietnam “as a war hero and a war protester, at the same time, was really brilliantly suited for the times,” says Mark Mellman, his campaign’s pollster. Victory in both the Iowa caucuses and, eight days later, the New Hampshire primary essentially sealed Kerry’s nomination. As Mellman points out, “there was no one who had won both Iowa and New Hampshire and lost in the history of the process.” All the other candidates withdrew by March 3. Even as he worked hard for his candidate, Mellman recalls, “I said to my colleagues and Senator Kerry when I was talking about taking the job, ‘Look, I believe that George Bush is going to be reelected.’” In “the first presidential election post-September 11,” Bush “was certainly seen by the public as strong and able to deal with terrorism.” Further, he “was seen as a regular guy who was in touch with people.” Bush had other advantages as well. His campaign team emerged from 2000 intact and, meeting regularly on Saturday mornings at lead strategist Karl Rove’s house (the so-called “breakfast club”), they planned a reelection campaign centered on mobilizing the party’s core constituencies to turn out at a higher rate than in 2000, as well as on increasing support for Bush among generally pro-Democratic women and Latinos. More than Kerry, who farmed out his voter turnout effort to the independent political group Moveon.org, “we learned,” says Bush campaign manager Ken Mehlman, “watching Governor Dean and watching what Joe Trippi put together—we learned something about the power of neighbor mobilizing and

Thwarted Realignment

influencing neighbor.” New “micro-targeting” data-mining techniques enabled the campaign to identify supportive voters in battleground states and connect them with local Bush activists whom they knew. Bush’s “small, disciplined group” of managers “were well ahead of us as far as voter contact and technology, and the mechanics of campaigns,” concedes Kerry campaign adviser Joe Lockhart. Far from a surefooted campaigner, Kerry blundered in several ways. In March he took the bait when a Bush ad accused him of letting down the troops in Iraq by voting in the Senate against an $87 billion appropriation bill to fund the war. “I actually did vote for the $87 billion before I voted against it,” Kerry told a West Virginia audience. “That was a gift,” says Vice President Cheney. According to deputy campaign strategist Mike Shannon, “it cemented the charge we were making against Senator Kerry that he flip-flopped.” When an anti-Kerry independent group, the Swift Boat Veterans for Truth, attacked his Vietnam heroism as bogus right after the generally successful Democratic convention in July, the Kerry campaign was slow to respond. One reason for letting the charges initially go unanswered, says Mellman, was that “Kerry had been attacked in all his previous races on something to do with foreign policy and military service, and it had always boomeranged. Second, that the story was just not getting that much attention,” which soon ceased to be true.15 “You have to address these things when it’s still in a liquid or gelatinous state, before it gets rock hard,” says political analyst Charlie Cook. “And [Kerry] didn’t do it.” The Swift Boat Veterans were hardly unique in 2004. “You had the beginning,” says Republican campaign lawyer John Ryder, “of the phenomenon of outside groups—the 527s— so-called because of section 527 of the Internal Revenue Code, which permits a political organization to raise money without disclosing much about its donors—and in spending unlimited amounts.” The reason 527s rose to prominence in 2004 was that the 2002 Bipartisan Campaign Reform Act (better known as the McCain-Feingold act) had banned large “soft money” donations to the political parties, which had the effect of channeling such funds to independent groups. “No way” the Bush campaign itself would have attacked Kerry’s war record, says principal Swift Boat media adviser Chris LaCivita. “Because, one, they wouldn’t have had the credibility to deliver that message, because it would have been the campaign doing it. And because George Bush didn’t serve in Vietnam.” Kerry had good moments as well as bad. In their first debate, says political scientist and Bush campaign adviser Daron Shaw, “the president looked kind of peevish and small” while Kerry “showed he had command and mastery of the facts.” A few days later Cheney took apart Edwards, whom he later described as a “scumbag,” in the vice presidential debate. Edwards and, in the final presidential debate, Kerry both found ways to mention that Cheney’s daughter Mary is a lesbian, which Mellman concedes allowed the Bush campaign to do “an effective job trying to mitigate the victories that Senator Kerry had in the debates with those individual nuggets.” On November 7, Election Day, Bush became a majority president: he won more than half the electoral votes in the presidential election: 286 for Bush, 251 for Kerry.16 Bush also won a majority of the national popular vote: 62.0 million (51 percent) to Kerry’s 59.0 million (48 percent), the first time in sixteen years that any candidate for president secured a popular majority. Equally important, the president’s party retained control of both houses of Congress, increasing the size of the Republican majority by three in the House and four in the Senate. Bush was the first president since FDR in 1936 to be reelected with accompanying

Michael Nelson

increases for his party in both congressional chambers. The fruits of his efforts were apparent in the 55-44 Republican Senate and the 232-202 Republican House. Bush was the fifth president to be elected to a second term in the postwar era. Each of his victorious predecessors—Eisenhower (1956), Nixon (1972), Reagan (1984), and Clinton (1996)—was reelected by a much larger margin than Bush. But in every case, theirs were isolated landslides in which the president did well—partly because he focused his efforts on himself—but the party’s congressional candidates did not. In no instance did the president’s party do what Bush and the Republicans did in 2004: gain seats in both the House and the Senate while securing reelection for the president. Nor did Eisenhower, Nixon, Reagan, or Clinton begin his second term as the head of a united party government that controlled the White House and both houses of Congress. “We tried very hard to avoid a lonely victory,” says Ken Mehlman, “to run a campaign that was very much focused on collaborating with Republicans around the country.” According to Mike Shannon, the Bush campaign ran “joint advertising with the Republican National Committee where we were able, in a sense, to make the case for President Bush and congressional Republicans.” The same was true of the GOP congressional campaign committees. Bush “was very interested in building that majority,” says NRSC executive director Jay Timmons. “He gave a lot of time to the House and Senate candidates on the road during the last month.” Equally important, Bush, like Kerry, relied on public financing in the general election, which allowed Republican donors to focus their giving on the party’s congressional candidates. “Bush was a good party leader,” says chief speechwriter Mike Gerson. “I think he cared about the party, he knew that his fate was tied to theirs, as far as effectiveness.” A majority president himself, Bush was well on the way to becoming the leader of the nation’s new majority party. His reelection meant that from 1968 to 2004, Republican nominees had won seven of ten presidential elections, cumulatively amassing 3,381 electoral votes (63 percent) to the Democrats’ 1,949 (36 percent). Neither of the two Democrats elected president in this period, Clinton and Carter, exceeded the 51 percent of the national popular vote that Bush won in 2004 in any of their elections. The budding Republican majority extended to Congress as well as the presidency. The party’s victories in the 2004 congressional contests marked the sixth consecutive election in which the Republicans won control of both the House and the Senate. In 1946 and 1952, the only other congressional elections since the 1920s in which the Republicans were victorious, they lost their majority just two years later. As for the third branch of government, the judiciary, by 2004 it also had become a Republican bastion. Control of the presidency and the Senate enabled the Republicans to choose a large majority of judges at all levels of the federal court system. By 2004, Republican presidents had made nine of the eleven most recent Supreme Court appointments (82 percent), 218 of 335 federal appeals court appointments (65 percent), and 834 of 1,342 district court appointments (62 percent).17 At the state level, Republicans enjoyed a majority of governors starting in 1994 and, in 2002, for the first time in the post-Baker v. Carr era of “one person, one vote” in legislative apportionment, they attained a majority of state legislators. By 2003, more voters were registered as Republicans than Democrats in the states that allow party registration.18 A December 2004 Gallup Poll showed the Republicans leading the Democrats by 37 percent to 32 percent among voters who claim a party affiliation,19 constituting “the most Republican electorate America has had since random-sample polling was invented” in the 1930s.20 The

Thwarted Realignment

dramatic surge in voter turnout from Bush’s first election to his second—from 54 percent of eligible voters in 2000 to 60 percent in 2004—helped him secure 10.5 million additional votes. Historically, surges in voter turnout, such as those that occurred in 1860 and during the 1930s, often mark the appearance of a new majority party.21 Geographically, the embryonic Republican majority was grounded in the twenty-nine states that Bush carried in both 2000 and 2004. These states constituted all or most of every region of the country except the Northeast, Pacific coast, and upper Midwest. Demographically, Republican strength rested mainly on a foundation of white men (who voted 62 percent for Bush in 2004) and married women (55 percent) living in suburban or rural (58 percent) communities. Bush’s sustained efforts to earn support from Latino (44 percent) and elderly (54 percent) voters also were rewarded with strong showings in 2004. Ideologically, Republicans tended to be philosophically conservative on most issues of culture, economics, and national security. In religious faith and practice, they were, for the most part, churchgoing Christians (70 percent). Bush even carried Catholic voters (52 percent) against the first Catholic nominee for president since John F. Kennedy in 1960.22 From 2000 on, says Republican Catholic strategist Leonard Leo, Bush aimed his appeal not at “the whole Catholic vote” but, with frequent references to “the culture of life,” at “massgoing Catholics” whose “lingo and language is very different from evangelical and Protestant lingo and language.” The emerging Republican majority did not come about through a dramatic realigning election such as occurred in 1860 or 1932.23 Instead, there was a “rolling” (or to use preferred term of political scientists, a “secular”) realignment underway,24 tied mostly to the gradual transformation of the conservative South from a pillar of the Democratic coalition to a mainstay of the Republican majority. Bush and Rove “had seen Texas go from a one-party dominated Democratic state to a state that, by the time he left office as president, had become a very red Republican-dominated state . . .,” says Dan Balz of the Washington Post. “Their goal was not simply to win reelection, but to put a foundation that, over succeeding years, they could create what they described as a durable Republican majority.” Some argued that Bush’s reelection was an entirely an artifact of the public’s gratitude for his leadership in the aftermath of September 11 and, therefore, would be of little lasting political significance. In truth, far from being a passing effect of 9/11, the solidifying of the Republican majority was attested by its continuity. With one exception, every state that Bush carried in 2000 supported him again in 2004,25 even though the issues that dominated the two elections shifted radically from domestic policy in 2000 to war and terrorism in 2004. And, as often has been the case historically, in 2004 the nation’s minority party fought the election on issues defined by the majority party. Kerry ran less as the champion of a Democratic agenda than as the anti-Bush, promising mainly to pursue Bush’s war on terror more effectively and to make Bush’s tax cuts more fair. Bush ran as himself, defending his record. On Election Day the great majority of Bush’s votes came from people who said they were for him. Nearly half of Kerry’s votes came from people who said they were against Bush.26

Michael Nelson

THWARTED REALIGNMENT The Republican Party was not going to win every election after 2004 no matter how well things went for them. Presidents’ second terms almost always have been less successful than their first terms,27 and winning three elections in a row is notoriously difficult for any political party. But the foundation on which the Republican majority stood in the aftermath of Bush’s first three elections placed it in a strong position to win considerably more elections than it lost. The GOP was en route to becoming the default setting in American politics for at least a generation. Actions by the same President Bush who had worked so hard and well to bring his party to the brink of majority status before the start of his second term thwarted the incipient realignment during his final four years in office, leading to the Democratic comeback in 2006 and 2008. With Bush claiming he had “the will of the people at my back” after the election, he chose to promote social security reform—an issue he scarcely mentioned during his reelection campaign—as his major legislative initiative in 2005. Not only did his proposal fail, but it forfeited the opportunity Bush had to enact immigration reform legislation, which would have helped to lock in the expanded Latino support for his party that he long had cultivated. In August the administration’s response to Hurricane Katrina was judged woefully inadequate and the president insensitive to the suffering of the poor in New Orleans. All year long, and on into 2006, the situation in postwar Iraq deteriorated, rousing strong public opposition to Bush’s conduct of the war and its aftermath. Finally, in September 2008 a financial crisis brought the country to the brink of depression. Bush left office with the highest public disapproval rating—71 percent—of any president in modern history, his reputation and that of his party in steep decline.28 Preoccupied with the worsening conditions in Iraq, Bush seldom was available to campaign for Republican candidates in 2006. Unpopular with the voters, he seldom was in demand. In 2008 GOP leaders and their presidential nominee, Sen. John McCain of Arizona, were secretly relieved when Hurricane Gustav washed out the first day of the party’s national convention in St. Paul, Minnesota, including the evening Bush was scheduled to speak. In the end neither he nor Cheney even attended the gathering. Yet despite the Democrats’ convincing victories in 2006, in 2008 and, with President Barack Obama’s reelection, in 2012, Bush’s failure to secure a Republican realignment did not produce one for the Democratic Party. The GOP regained control of the House in 2010 and the Senate in 2014. Indeed, in the aftermath of the 2014 midterm election there were more House Republicans than in any congress since 1946. Similar results attended elections for state office, leaving Republicans in control of sixty-eight of the ninety-eight partisan state legislative chambers (their best record since 1920) and thirty-one of the fifty governorships. For Bush and the Republican Party, his second term was an opportunity lost, not its opposite attained.

Thwarted Realignment

ENDNOTES 1

On 1968, see Michael Nelson, Resilient America: Electing Nixon in 1968, Channeling Dissent, and Dividing Government (Lawrence: University Press of Kansas, 2014). 2 Benjamin Ginsberg and Martin Shefter, Politics by Other Means: The Declining Importance of Elections in America (New York: Basic Books, 1990). 3 See Sidney M. Milkis and Michael Nelson, The American Presidency: Origins and Development, 1776-2014 (Washington, D.C.: CQ Press, 2015), chap. 16. 4 Quoted in Bill Turque, Inventing Al Gore (Boston: Houghton Mifflin, 2000), 356. 5 Michael Nelson, “Who Vies for President?” in Alexander Heard and Michael Nelson, eds., Presidential Selection (Durham, N.C.: Duke University Press, 1987), 120-154. 6 Unless otherwise indicated, quotations in this chapter are from “The Election of 2004” website, ed. Michael Nelson, Center for Presidential History, Collective Memory Project, Southern Methodist University: http://cphcmp.smu.edu/2004election. 7 Michael Nelson, “The Election: Ordinary Politics, Extraordinary Outcome,” in The Elections of 2000, ed. Michael Nelson (Washington, D.C.: CQ Press, 2001), 55-92. 8 Gary C. Jacobson, The 2000 Elections and Beyond (Washington, D.C.: CQ Press, 2001), 26. 9 Marc J. Hetherington and Michael Nelson, “Anatomy of a Rally Effect: George W. Bush and the War on Terrorism,” PS: Political Science and Politics 36 (January 2003), 37-42. 10 Bruce I. Oppenheimer, James A. Stimson, and Richard W. Waterman, “Interpreting U.S. Congressional Elections: The Exposure Thesis,” Legislative Studies Quarterly 11 (1986): 227-247. 11 Dan Balz and Mike Allen, “Four More Years Attributed to Rove’s Strategy,” Washington Post, November 7, 2004. 12 Dan Balz, “GOP Aims for Dominance in ’04 Race,” Washington Post, June 22, 2003; Balz and Allen, “Four More Years Attributed to Rove’s Strategy.” 13 Tom Hamburger, “Business Groups Invested in Races, Now Wait for Return,” Los Angeles Times, November 8, 2004. 14 “Dean: America Not Safer after Saddam’s Capture,” foxnews.com (http://www.foxnews.com/story /2003/12/16/dean-america-not-safer-after-saddam-capture/). 15 According to Bob Shrum, the problem was that “Mark Mellman’s polling was telling us that this wasn’t having much impact,” a recollection with which Mellman strenuously disagrees. 16 A Minnesota elector who was pledged to support Kerry voted instead for his running mate, John Edwards. 17 Calculated from data provided by the Federal Judicial Center (www.fjc.gov). 18 John Micklethwaite and Adrian Wooldridge, The Right Nation: Conservative Power in America (New York: Penguin Press, 2004), 231. 19 Harold F. Bass, “George W. Bush, Presidential Party Leadership Extraordinaire?” The Forum 2 (2004). http://www.beprss.com/vol2/ iss4/art6. 20 Michael Barone, “Reshaping the Electorate,” U.S. News and World Report (November 29, 2004), 32. 21 See, for example, V.O. Key, “A Theory of Critical Elections,” Journal of Politics 17 (1955): 3-18; and Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics (New York: W. W. Norton, 1970), 7-8. 22 Michael Nelson, “George W. Bush, Majority President,” in The Elections of 2004, ed. Michael Nelson (Washington, D.C.: CQ Press, 2005), 1-17. 23 Even David Mayhew, a strenuous critic of realignment theory, urges acceptance of a “a stripped-down version” that “keeps[s] using the term realignment to characterize the two genuine outlier eras of American political history—the 1860s and 1930s.” Mayhew, Electoral Realignment: A Critique of an American Genre (New Haven: Yale University Press, 2002), 162. 24 “Rolling realignment” is the term used by chief Bush political strategist Karl Rove. According to political scientist V.O. Key, a “secular realignment. . . may be regarded as a movement of the members of a population category from party to party that extends over several presidential elections.” Key, “Secular Realignment and the Party System,” Journal of Politics 21 (May 1959), 199. 25 New Hampshire supported Bush in 2000 but not in 2004. More than offsetting this loss, however, two larger states that Bush lost in 2000, Iowa and New Mexico, supported him in 2004. 26 Nelson, “George W. Bush, Majority President.”

Michael Nelson

Michael Nelson, “Barack Obama and the Perils of Second-Term Presidents,” in The Elections of 2012, ed. Michael Nelson (Washington, D.C.: CQ Press, 2014), 1-20. 28 Paul Steinhauser, “Poll: Bush Most Unpopular President in Modern History,” cnn.com (http://politicalticker .blogs.cnn.com/2008/05/01/poll-bush-most-unpopular-in-modern-history/). 27

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 7

BUSH AND THE FAITH-BASED INITIATIVE: FORGOING THE ROLE OF CHIEF LEGISLATOR Donna R. Hoffman1 and Alison D. Howard2 1

University of Northern Iowa, Cedar Falls, Iowa, US Dominican University of California, San Rafael, California, US

ABSTRACT We examine the case of President George W. Bush’s faith-based initiatives through the lens of a president’s legislative powers, in particular his ability to recommend measures to Congress (and by extension the public). By examining both the frequency and intensity of presidential rhetoric related to this signature Bush initiative, we gain insight into how he viewed his policymaking role, as well as how he connected his accomplishments to his re-election campaign and eventual legacy. We find that Bush did not take full advantage of his rhetorical tools in the area of faith-based initiatives. While he talked about his initiative in major, as well as minor addresses and treated them as central to how he would define his presidency domestically, we find that he did not extensively “sell” his faith-based initiative in his rhetoric. This resulted in an approach that was less rhetorical in nature and more executive centered.

One of the many roles that contemporary presidents are expected to fulfill is that of chief legislator.1 As such, presidents seek to lead Congress with their legislative proposals. The chief legislator role is a limited one, however. While a president has the Constitutional power to recommend to Congress “measures as he shall judge necessary and expedient,” (Art. II, sec.3), he must rely on members to move his legislative agenda. While presidents have a qualified veto at the end of the legislative process, they are at the mercy of Congress at the beginning of the process. Congress, of course, may choose not to act. Since each play key roles in the legislative process, effective political communication between the president and Congress is essential. In addition, the public is an important audience for presidents to consider. Presidents are endowed in this endeavor with the “bully pulpit,” and from this pulpit, presidents can rhetorically define situations as they see them.2 As a president speaks,

Donna R. Hoffman and Alison D. Howard

he will couch legislative requests so as to persuade his audiences he has the legislative solution to the problem he has detailed; he will employ symbolism, appeal to shared values, use individuals as examples, and talk substantively about the policy problem and solution he proposes. While Congress is obviously one of the audiences with which the president is concerned, he will also focus on persuading the public with the hope that they may put pressure on Congress to act.3 Doubt has been cast upon whether this strategy is effective in actually changing public opinion.4 Presidents, however, still behave as if it is; presidents seek to rhetorically “sell” their policy proposals. Furthermore, it has been shown that the attention of entrepreneurial presidents to policy may affect the congressional agenda.5 Our case study provides an examination of how President George W. Bush talked to the Congress (and the public) as chief legislator about an agenda item of his own choosing, a signature initiative where attention could be focused and the situation defined by the president in his terms. Bush advocated a multi-pronged faith-based initiative and devoted rhetorical attention to what formed the core of his “compassionate conservatism.” As a candidate, he campaigned on this issue and, as president, he talked about the faith-based initiative in multiple forums. He sought legislation in Congress and signed executive orders as he attempted to implement his vision. As he was leaving office, he viewed the accomplishments in this area as important to his administration. We examine how the president, acting as chief legislator, rhetorically approached the faith-based initiative using both major and minor addresses to gauge the frequency and intensity of the way the president advocated his policy preferences, as well as how he sought to persuade his audiences that his policies should be adopted. Chief legislators also advocate policy for reelection and legacy purposes, and we examine his rhetoric in this regard, too. The faith based initiative was something Bush personally cared about and wanted to see advance. His focused attention got this new initiative on the agenda, however, audiences needed to be educated and informed about the president’s vision. Examining how Bush rhetorically advanced his “pet project” gives us insight into how Bush viewed his policymaking role. Bush’s initial actions on the faith-based initiative were two executive orders; he subsequently was unable to convince Congress to adopt the main aspect of his faith-based initiative and resorted to bypassing Congress with another executive order to accomplish some of his goals. Being a policy leader requires a host of skills in which rhetoric can play a large role. From the beginning, Bush acted through his executive powers regarding the faithbased initiative. While he did seek legislative action (and had some successes) the major aspect of his initiative was accomplished through executive powers after Congress failed to act. Bush did not use his rhetorical powers to sell his signature initiative as extensively as one might expect. Furthermore, Bush did not often claim credit for his accomplishments (neither the legislative, nor executive ones) as he ran for re-election and sought to secure his legacy. Bush acted more as a chief executive than as a chief legislator, and this affected his rhetoric.

THE PRESIDENT AS CHIEF LEGISLATOR As chief legislator, the president shares characteristics with regular legislators. Fenno found the goals of legislators to be securing reelection, gaining influence in the chamber, and making public policy. In addition, some will possess progressive ambition.6 Chief legislators

Bush and the Faith-Based Initiative

do not share with regular legislators the goals of chamber influence and progressive ambition; chamber influence is built into the role, and being president makes progressive ambition irrelevant. Making public policy and securing reelection are shared by legislators and the chief legislator alike. Central to the president’s legislative role is the public policy goal; today’s presidents present an agenda to Congress and seek to lead Congress to enact it. The reelection goal for presidents is a short term one due to the two-term limit. There is a related goal, unique to chief legislators, which pertains to their desire for a positive legacy. In the first term, reelection and legacy goals are linked. One will primarily be concerned with reelection, but the things one does to aid reelection also impact one’s legacy; a president certainly wants to avoid a legacy as a one-term president. In the second term, with reelection an impossibility, focus shifts to one’s legacy. Mayhew identified three activities in which legislators engage to further their reelection goals: advertising, credit claiming, and position taking.7 In the sense that Mayhew defines the behavior of advertising (furthering one’s “brand name”), it does not apply to the chief legislator, who, as president, is the most well-known and recognizable public official.8 Credit claiming and position taking, however, are activities in which the chief legislator does engage. For the president, these activities don’t just further reelection goals, but also further the mutually reinforcing legacy and public policy goals.9 As chief legislators, presidents rely heavily on rhetoric. In their attempts to make public policy they take positions on policy; they detail policy problems and propose, or support, solutions to those problems. They stress their policy effectiveness by claiming credit for actions. In turn, making public policy and claiming credit for those policies aid them in their reelection and legacy goals. These goals are particularly on display in State of the Union addresses, where presidents appear before a joint session of Congress and the American public near the beginning of a congressional session to discuss aspects of their agenda for that session.10 Other major and minor addresses can also aid in giving an indication of the president’s rhetorical attention to an initiative and how he acts in the role of chief legislator.

DATA AND METHODOLOGY Using the Weekly Compilation of Presidential Documents, we examine how Bush rhetorically highlighted the case for his faith-based initiative in major and minor addresses.11 Kernell defined major addresses since Reagan as those televised to a national audience.12 We follow this distinction with the additional clarification of being televised during hours of prime-time viewing. We further divide minor addresses into four categories: radio addresses, speeches/remarks to specialized audiences (includes remarks for campaign purposes, to interest groups, particular communities, and video remarks to groups), televised minor appearances (such as interviews and news conferences), and miscellaneous (bill signings, nomination announcements, and other official functions). By making a qualitative distinction between minor addresses in this way we can better examine the rhetorical tactics Bush used to bring attention to his faith-based initiative. As Kernell notes, radio addresses likely have a larger impact on press coverage despite their small audience.13 They are, thus, qualitatively different from many other addresses in the minor category. The increase in minor speeches

Donna R. Hoffman and Alison D. Howard

and remarks to specialized audiences is where Kernell documented the largest growth in terms of presidents “going public.”14 To assess the attention and intensity of the president’s major and minor addresses, we analyze each speech to determine whether the president’s attention to the issue was focused, mixed, or cursory. A focused speech was one where the president’s attention was devoted to the faith-based initiative, and no other policy issues. A mixed address devoted some space for discussion/explanation of the president’s initiative, but other policy issues were given similar treatment. The president’s attention was judged to be cursory if the address merely mentioned the initiative and did not devote space to any explanation of the issue.

RHETORICAL APPROACH TO BEING CHIEF LEGISLATOR Bush campaigned on his pet project and presented it as the thematic core for his domestic agenda. Bush’s compassionate conservatism was framed as going beyond “the stale debate between big Government and indifferent Government. Government must be active enough to fund services for the poor and humble enough to let good people in local communities provide those services.”15 To make America better, and capture his notion of good citizenship Bush planned on unleashing what he called the “armies of compassion.”16 Once elected, he set into motion events to help him realize his public policy goals. How did Bush rhetorically approach the “selling” of his pet project? One of the very first policy actions that Bush took was on the faith-based initiative; furthermore, it was not a legislative action, but an executive one. On January 29, 2001, Bush issued two executive orders, the first of his administration. One established the White House Office of Faith-Based and Community Initiatives (EO 13199), the other established Centers for Faith-Based and Community Initiatives in five executive departments (EO 13198). These offices were to coordinate efforts to ease the path for faith-based groups to participate in providing social services through federal grants and programs. Presidents often hold signing ceremonies when they sign major legislation into law, but ceremonies at which they sign executive orders are used much less frequently. Bush delivered remarks about the faith-based initiative in the Eisenhower Executive Office Building in the mid-morning on January 29 and upon concluding his speech, signed the two executive orders. In his remarks, Bush signaled the importance of his faith-based initiative. “It is one of the great goals of my administration to invigorate the spirit of involvement and citizenship . . . when we see social needs in America, my administration will look first to faith-based programs and community groups, which have proven their power to save and change lives.”17 The next day, Bush spoke at the Fishing School, a faith-based community center in Washington, D.C., where he announced that he was “sending to Congress a set of ideas and proposals that mark a hopeful new direction for our Government. We will encourage community and faith-based programs without changing their mission. We will eliminate barriers to charitable works wherever they exist, and we will encourage charitable giving wherever we can.”18 Bush’s pet project was a series of initiatives, sent initially to Congress in the form of “ideas and proposals.”19 In the Fishing School speech, Bush gave some detail about his Congressional requests. “Here are some of my proposals. I want to fully open up the Federal after-school program, called 21st century learning centers, to all after-school programs, including faith-based groups. I propose

Bush and the Faith-Based Initiative

to create a compassionate capital fund which will provide start-up funds for promising new programs serving people in need. We'll make sure that funding is available to faith-based programs on an equal basis, with nonreligious alternatives. Government, of course, cannot fund and will not fund religious activities, but when people of faith provide social services, we will not discriminate against them. I propose to encourage mentoring programs for children of prisoners, as well as programs that, when possible, help to mend broken families.”20 Officially, the White House referred to the “faith-based initiative” or the “faithbased and community initiative.” Bush, however, occasionally referred to “faith-based initiatives” and there truly were, as can be seen from the above list of proposals, a number of things that made up the policy. In the next several days, Bush briefly mentioned his initiatives at two events, but offered no explanation.21 On February 1, Bush attended the National Prayer Breakfast, where the subject of his speech was faith, and Bush discussed the initiatives in that context.22 Bush’s initial rhetorical events in late January and early February were minor remarks given to narrow, or specialized, audiences. Bush discussed his faith-based initiatives in the joint address to Congress on February 27. In this major address, which functions like a State of the Union address, he devoted significant space to his vision of faith-based programs. “And my budget adopts a hopeful new approach to help the poor and the disadvantaged. We must encourage and support the work of charities and faith-based and community groups that offer help and love, one person at a time. These groups are working in every neighborhood in America to fight homelessness and addiction and domestic violence, to provide a hot meal or a mentor or a safe haven for our children. Government should welcome these groups to apply for funds, not discriminate against them. Government cannot be replaced by charities or volunteers. Government should not fund religious activities. But our Nation should support the good works of these good people who are helping their neighbors in need. So I propose allowing all taxpayers, whether they itemize or not, to deduct their charitable contributions. Estimates show this could encourage as much as $14 billion a year in new charitable giving, money that will save and change lives. Our budget provides more than $700 million over the next 10 years for a Federal compassion capital fund, with a focused and noble mission, to provide a mentor to the more than one million children with a parent in prison and to support other local efforts to fight illiteracy, teen pregnancy, drug addiction, and other difficult problems.”23 Bush also introduced Philadelphia Mayor John Street (a Democrat) as an example of someone who incorporated the use of faith-based programs in his city’s approach to helping the disadvantaged. Interestingly, Bush did not claim credit in this speech for either of the executive actions he had taken one month earlier that set up administrative infrastructure in various executive agencies, and established a new White House office. During March 2001, House sponsors J.C. Watts (R-OK) and Tony Hall (D-OH) introduced their faith-based bill called the Community Solutions Act (H.R 7).24 Bush issued a brief written statement on March 21 acknowledging and supporting this legislation, but made no public comments.25 The very next day, Bush addressed the National Newspaper Association Government Affairs Conference, and despite lengthy remarks on a host of his priorities, there was no mention of faith-based initiatives.26 Bush gave a radio address on March 31, in which the overall subject was his budget and mentioned only one of his initiatives, the use of faith-based groups in the mentoring of prisoners’ children.27

Donna R. Hoffman and Alison D. Howard

Bush’s key speech on compassion and faith-based initiatives is the commencement address at the University of Notre Dame in May.28 He focused on the initiatives' rationale and mentioned Lyndon Johnson’s War on Poverty as having mixed success, and wrongly turning “too many citizens into bystanders, convinced that compassion had become the work of Government alone.”29 He mentioned the 1996 welfare reform favorably as “a tribute to the Republicans and Democrats who agreed on reform, and to the President who signed it, President Bill Clinton.”30 Bush saw his faith-based initiative as building upon these programs’ successes. “For the task ahead, we must move to the third stage of combating poverty in America. Our society must enlist, equip, and empower idealistic Americans in the works of compassion that only they can provide.”31 Besides the rationale behind compassionate conservatism, Bush also discussed several aspects of the policies he had already proposed (compassion capital fund, allowing nonitemizers to deduct charitable contributions, expansion of charitable choice). In addition, he added two initiatives to his agenda regarding housing and drug treatment; both proposals involved increasing funds available to groups involved in providing low-income housing and drug treatment, funds which would then be available to faith and community based groups on an equal footing. He addressed critics’ concerns regarding the separation of church and state by noting instances where federal funds already go to faith-based organizations. Bush also stressed citizenship. “Government can promote compassion; corporations and foundations can fund it; but the citizens – it’s the citizens who provide it. . . . Citizenship is empty without concern for our fellow citizens, without the ties that bind us to one another and build a common good.”32 Bush used the phrase “ties that bind” that would have resonance with Christians, as it refers to the hymn, “Blest be the Ties that Bind.” Finally, Bush ended his speech by again referring to Johnson’s War on Poverty positively and adding, “The methods of the past may have been flawed, but the idealism of the past was not an illusion.”33 Bush always conceived of his faith-based initiative as something which should have bipartisan appeal. By referring in largely positive terms to Johnson’s War on Poverty and Clinton’s role in welfare reform, Bush could discuss his approach to poverty in a way that might appeal to some Democrats. As documented by Formicola, Segers, and Weber, however, while there was an element of bipartisan appeal for the initiatives, there was also bipartisan criticism; critics, many of them powerful, arose on both the right and the left.34 Throughout the summer, Bush continued to talk about the faith-based initiative, but not in any major speeches. Typically, he addressed specialized audiences, predominantly faith-based groups, in which the initiative was briefly explained or mentioned. While he gave weekly radio addresses, only one in March, and another in May discussed faith-based initiatives at all, and each of these also discussed unrelated policy items. On July 19, the House of Representatives passed the Watts-Hall bill; a week earlier the bill had passed out of committee. On the occasion of each of these events, Bush issued a written statement, but made no remarks.35 It was not until August 18 that Bush gave a radio address devoted solely to faith-based initiatives, and specifically on charitable choice, the main thrust of the initiative that would allow for any faith-based group to compete for federal grants even if it engaged in discriminatory hiring practices. He specifically urged Senate action and encouraged his audience to “let your Senator know if you see him or her during the congressional recess” to act on the House bill.36 When September 11 occurred, the priorities of the Administration shifted, but they maintained some attention on faith-based initiatives. The Senate had not acted on the House

Bush and the Faith-Based Initiative

bill passed that summer. In November, Bush sent a letter to the two Senate leaders that urged them to act before the end of the congressional session. Bush used the events of September 11 to stress the need for his faith-based initiatives, as donations to charities not associated with disaster relief had suffered declining donations in the aftermath of 9-11.37 In his radio address on December 8, Bush addressed several pending legislative priorities, of which the faithbased initiative was one, and urged congressional action.38 Table 1. Type and Frequency of Speeches Containing Faith-Based Content

2001 2002 2003 2004 2005 2006 2007 2008 Total

Total Speeches

Major Addresses

68 64 73 75 31 33 11 21 376

1 1 1 1 1 1 0 1 7

Minor Addresses Radio 4 1 4 2 1 2 0 2 16

Specialized 49 56 60 71 22 25 9 8 300

Televised 1 0 0 0 2 1 0 1 5

Misc. 13 6 8 1 5 4 2 9 48

Table 2. Attention and Intensity of Speeches Containing Faith-Based Content

2001 2002 2003 2004 2005 2006 2007 2008 Total

Major Addresses Focused 0 0 0 0 0 0 0 0 0

Mixed 1 0 1 1 1 0 0 1 5

Cursory 0 1 0 0 0 1 0 0 2

Minor Addresses Focused 16 5 2 3 3 2 0 4 35

Mixed 33 19 53 32 10 12 1 11 171

Cursory 18 39 17 39 17 18 10 5 163

When Bush delivered his State of the Union address in 2002, there was only a bare mention of anything having to do with the initiatives, and it was lumped into a list of things on which the president wanted Congress to work. “Members, you and I will work together in the months ahead on other issues: productive farm policy; a cleaner environment; broader homeownership, especially among minorities; and ways to encourage the good work of charities and faith-based groups. I ask you to join me on these important domestic issues in the same spirit of cooperation we've applied to our war against terrorism.”39 As shown in Table 1, Bush devoted about the same number of total speeches that contained content on the faith-based initiative in 2002 as he did in 2001. Table 2, however, shows that he gave only

Donna R. Hoffman and Alison D. Howard

five minor addresses focused on the faith-based issue in 2002; more than 60% of the speeches he gave that referred to the faith-based initiative did so only in a cursory manner. As the 107th Congress came to a close, Senators Santorum (R-PA) and Lieberman (D-CT) made a last ditch effort to get their faith-based legislation considered on the floor of the Senate, but it died.40 At this point, the Bush Administration decided to move administratively rather than legislatively and on December 12, 2002, Bush signed EO 13279 entitled Equal Protection of the Laws for Faith-Based and Community Organizations which would “clear the way for federal aid to flow to religious charities, even if they discriminate in their hiring practices on religious and moral grounds.”41 Bush, as he did with his first executive orders, gave a speech to the White House Conference on Faith-Based and Community Initiatives which preceded his public signing of the orders.42 In this speech, Bush emphasized that government should not discriminate against religion; he detailed several examples where faith-based groups were denied government grants because of religious issues. He then said, “And this discrimination shows a fundamental misunderstanding of the law. I recognize that Government has no business endorsing a religious creed or directly funding religious worship or religious teaching. That is not the business of the Government. Yet Government can and should support social services provided by religious people, as long as those services go to anyone in need, regardless of their faith. And when Government gives that support, charities and faithbased programs should not be forced to change their character or compromise their mission. And I don't intend to compromise either. I have worked for a Faith-Based Initiative to rally and encourage the armies of compassion. I will continue to work with Congress on this agenda. But the needs of our country are urgent, and as President, I have an authority I intend to use. . . And as the leader of the executive branch, I'm going to make some changes, effective today.”43 Bush emphasized his executive powers and his unwillingness to compromise. At this point, legislative action was effectively dead.44 When he issued his main executive order in December 2002, Bush had only a few small legislative successes. One was in getting $30 million for the Compassion Capital Fund (CCF) that was established in the FY02 spending bill.45 A second was the authorization of the Mentoring Children of Prisoners (MCP) program.46 After the December order, he succeeded in getting Congress to fund the MCP beginning in 2003 and both authorize, as well as fund the Access to Recovery (ATR) drug treatment program beginning in FY2004.47 Bush later signed two other executive orders related to the faith-based initiative, one in 2004 (EO 13342) and another in 2006 (EO 13397). These established centers for Faith-Based and Community Initiatives in four more executive agencies. As the above indicates, Bush’s policymaking goal on the faith-based initiative was partially fulfilled; most importantly, however, it was largely fulfilled through executive means, not legislative ones. Bush used his executive powers to fulfill some of his policy goals regarding faith-based initiatives, most significantly the charitable choice provisions allowing for faith-based groups to receive federal aid and maintain their independence and religious character.48 As Bush’s attendance at campaign events across the country commenced in June 2003, he talked about his faith-based initiatives (along with other policy issues) and he continued to urge congressional action. In March of 2004, however, as the reelection campaign escalated, Bush’s remarks about the initiatives became cursory. He would mention the value of faithbased institutions, but would not talk about any policy specifics. “This Nation is prosperous

Bush and the Faith-Based Initiative

and strong, yet we need to remember that our greatest strength is in the hearts and souls of our citizens. We're strong because of the values we try to live by, courage and compassion, reverence and integrity. We're strong because of the institutions that help give us direction and purpose, families and schools and religious congregations. These values and institutions are fundamental to our lives, and they deserve the respect of our Government. We stand for the fair treatment of faith-based groups so they can receive Federal support for the works of compassion and healing. We will not stand for Government discrimination against people of faith.”49 Despite having already acted through executive action to ensure “fair treatment of faith-based groups,” Bush did not claim credit for this accomplishment. Furthermore, Congress had funded the CCF and the MCP, as well as the ATR, but he did not claim credit for these either. By May of 2004 and continuing on until the election, Bush’s remarks at campaign events were down to one sentence that typically merely mentioned “we stand” or “we support” the fair treatment of faith-based groups, which had already been accomplished through executive action. Table 2 indicates the shift in Bush’s rhetoric from 2003 to 2004. In 2003, Bush gave 53 speeches where he talked in some detail about faith-based initiatives, as well as other policies; in 2004, however, that number substantially decreased and the majority of his remarks on faith-based initiatives became cursory. Even though Bush had accomplished some of his policy goals in this area, (indeed the policy accomplishments he would achieve are largely finished), he did not engage in credit claiming on this issue at campaign events, and rarely in speeches that weren’t campaign related. This is not because Bush was averse to claiming credit. Previous research that we conducted on Bush’s State of the Union Addresses shows that Bush was one of the most active credit claimers of all presidents going back to Lyndon Johnson.50 He simply was not active in claiming credit for his accomplishments (incomplete though they were, but significant nonetheless) with regard to faith-based initiatives. In campaigning for reelection, Bush did not rely on rhetoric about his pet project, especially as the election of 2004 edged closer. Furthermore, once his reelection was secured, the number of speeches that contained content on faith-based initiatives declined by more than half and a majority of those remarks become cursory (see Tables 1 and 2).

ACTING AS CHIEF LEGISLATOR At its root, Bush’s faith-based initiative exemplified the way in which the president wanted to help the disadvantaged by drawing upon his view of citizenship. This initiative benefitted from presidential attention to get it on Congress’s agenda.51 Elements of the faithbased initiative had not recently been on the agenda, so the president had to advertise and educate his audiences about his policy preferences. A chief legislator has two main tools with which he can lead Congress, rhetoric (his power to report on the state of the Union, and recommend necessary and expedient measures) and his veto power. What does the case of faith-based initiatives tell us about the way Bush-as-chief-legislator utilized one of the major tools chief legislators have, their rhetoric?

Donna R. Hoffman and Alison D. Howard

Public Policy Goal It is important for presidents to have a focused agenda and to act quickly on it once they are in office.52 Bush was quick out of the gate with the faith-based initiative, and to some degree, Bush was able to make “deeds follow words.” Bush’s success in making public policy regarding faith-based initiatives, however, was largely done with his executive powers when Congress failed to make the desired changes. As chief legislator, he was not very successful in getting Congress to fulfill his faith-based initiatives; his main legislative successes were the CCF, MCP, and the ATR. The December 2002 EO, however, was extremely significant because it accomplished one of the main goals of the faith-based initiative by opening up federal grants and programs to virtually any faith-based group. In using rhetoric to sell faith-based initiatives, Bush utilized symbolism that would resonate with the American public. Like LBJ’s War on Poverty, Bush also wanted to combat poverty, but by incorporating the “armies of compassion” into the federal government’s role. He cast his proposed policies as being perfectly in line with the shared values of Americans, as well as their notions of citizenship. Bush also, like other presidents before him, utilized ordinary Americans in his speeches as examples of what faith-based institutions could accomplish. As shown in Table 1, in every State of the Union (or equivalent) address except for 2007, Bush mentioned at least some aspect of his faith-based initiative. Bush was especially active in using specialized minor addresses in his first term to discuss the faith-based initiative. Of Bush’s minor remarks, one can see a marked difference from the first term to the second term. And, in 2004 when he was campaigning for a second term, the number of minor specialized speeches peaked. As Bush began his second-term, he was much less likely to mention faithbased initiatives in minor addresses. At the start of his presidency, Bush quickly sent “ideas and proposals” to Congress; his faith-based initiative was multi-faceted and this alone would seem to require more rhetorical attention. Furthermore, in his speeches, Bush sometimes emphasized one or two facets to the exclusion of others, and sometimes (as in the Notre Dame speech) he added things to his faith-based initiatives. By having multiple aspects to the initiatives, Bush had more things to explain, but he tended not to include a lot of detail or explanation. Furthermore, some aspects of the faith-based initiative, especially charitable choice, were not simple to explain. The phrase “charitable choice” itself was not intuitively something about which his audiences would necessarily know; it was not self-explanatory, but Bush sometimes treated it as such. Bush often couched his pet project as eliminating government discrimination of religious groups, but did not explain that was the essence of his view of charitable choice. Bush was not as active in explaining his pet project when he was addressing wider audiences (major addresses, as well as radio and minor televised events) because he rarely gave focused addresses of these types. Another significant aspect of the way Bush used his rhetoric on the faith-based initiative can be found in the type of audiences he addressed. Bush largely engaged in “preaching to the choir” regarding his faith-based initiatives. When he gave focused addresses and thus, was at his most detailed, he typically addressed specialized audiences and those largely receptive to faith-based initiatives. In 2001 and 2002, most of his minor addresses were given to specialized groups, and many of these were faith-based. For example, in 2001 Bush gave focused remarks to leaders of Hispanic faith-based organizations, the Fishing School,

Bush and the Faith-Based Initiative

Martha’s Table, Habitat for Humanity, at the National Prayer Breakfast, and to various religious communities. He did not attempt to sell his initiative to audiences that were wider in scope. This was in keeping with much of the Bush presidency’s approach to giving speeches, which were often given to pre-screened audiences, and/or audiences filled with supporters.53

Reelection and Legacy Goals Chief legislators also use their rhetoric to aid them in reelection and advancing a positive legacy. Bush was reelected; whether his legacy on faith-based initiatives will be positive requires more passage of time to assess. However, we can assess the degree to which Bush sought to tie his legacy to his faith-based initiative. Bush had the largest number of total speeches that mentioned the faith-based initiative in 2004 (Table 1). It is clear from these numbers, as well as the content of his speeches, that referring to the faith-based initiative was seen as being important. However, the lack of explanation or discussion we found in election year speeches indicated that Bush felt no need to detail aspects of what the faith-based initiative entailed; mentioning it was enough. In the year immediately after his reelection, he gave considerably less attention to the subject and his total speeches dropped in 2005 by more than half. Bush was not actively claiming credit for his accomplishments in the area of faith-based initiatives in 2003 and 2004. And, while he had limited legislative accomplishments, his executive actions accomplished a highly significant aspect of what he wanted Congress to enact. Even the CCF, accomplished legislatively, was mentioned by Bush twice each in 2003 and 2004 (and only once in 2005 and 2008); all were instances where he spoke to specialized audiences. Similarly, rarely did he claim credit for his executive actions. This would not be peculiar if Bush was shy about claiming credit in general, but as mentioned above, Bush was very active in claiming credit for other policy accomplishments in his first term. Furthermore, the closer the 2004 election drew, the less extensive his remarks got when he mentioned faithbased initiatives, and credit claiming stopped. In most of his campaign related events in 2004, his stump speeches were down to one cursory mention in which he said, “we stand” or “we support” faith-based groups’ fair treatment (which Bush had accomplished through executive action). Given that Bush-Cheney campaign events were meant to rally their base, it perhaps made sense to rely on the connotations of “faith-based” groups, rather than claim credit for policy accomplishments. Furthermore, Bush still wanted legislative action to make permanent what he had done with his executive order.54 Perhaps this tactic was designed so Bush could continue to rally his supporters to a cause rather than claiming credit for accomplishments that might signal that the battle was over. Bush’s rhetoric, however, becomes so cursory that it is difficult discern the intent. After his reelection, Bush was much less active in discussing his pet project and there was no increase in speeches that mention faith-based initiatives as he conceivably began to eye his legacy. What was curious for Bush, however, was his lack of credit claiming for both his legislative, as well as his executive actions, regarding his pet project. The most significant speech Bush gave on this subject was in June 2008 to a specialized audience, the Office of Faith-Based and Community Initiatives’ national conference. In this speech Bush stated, “I truly believe the faith-based initiative is one of the most important initiatives of this administration.”55 This sentiment was not extended, however, in his final State of the Union

Donna R. Hoffman and Alison D. Howard

address. As Bush prepared to leave office in 2008, there was a slight uptick in the number of speeches from the previous year, but 2008 represents the year with the second fewest mentions of faith-based initiatives in his two-term presidency. Thus rhetorically, Bush did not act in a way that indicated these initiatives were a key aspect of a broad legacy. For certain constituencies, however, Bush did emphasize.

CONCLUSION What does this case tell us about how Bush approached his role as chief legislator? Bush was not very active in using his rhetorical resources to advance faith-based initiatives. In addition, he did not extensively claim credit for his accomplishments to aid his reelection, nor did he extensively tie them to his legacy in major addresses, but he did in some specialized ones. Bush's approach regarding his faith-based initiative was both less rhetorical in nature, as well as being more executive centered. A president's rhetorical powers stem from the chief legislator role where he is given the power to both report and recommend measures to Congress. Relying more on unilateral executive powers was key to how Bush pursued his pet project, and was thus, a less rhetorical strategy. Bush quietly executed the main element of the faith-based initiative. He could have taken a more rhetorically active approach to articulating, defining, and promoting his pet project. Bush's lack of rhetorical emphasis on selling and advertising the initiatives, along with his approach to giving speeches to audiences that were already primarily predisposed to supporting his policy may have resulted in a missed opportunity for him to build support among the public. Making policy by executive order means that any president that follows is similarly able to change or reverse policies put in place. Time will tell if Bush's faith-based policy, and thus his legacy in this area, will endure.

ENDNOTES Clinton Rossiter, The American Presidency, (New York: Harcourt, Brace and Co., 1956); Wilfred E. Binkley, “The President as Chief Legislator,” Annals of the American Academy of Political and Social Sciences, 307 (1956), p. 93; Donna R. Hoffman and Alison D. Howard, Addressing the State of the Union: The Evolution and Impact of the President’s Big Speech, (Boulder: Lynne Rienner Publishers, 2006). 2 David Zarefsky, “Presidential Rhetoric and the Power of Definition,” Presidential Studies Quarterly 34 (September 2004). 3 Samuel Kernell, Going Public: New Strategies of Presidential Leadership, 3rd ed., (Washington: CQ Press, 1997). 4 George C. Edwards, III., On Deaf Ears: The Limits of the Bully Pulpit, (Yale University Press, 2003). 5 George C. Edwards, III, and B. Dan Wood, “Who Influences Whom? The President, Congress, and the Media,” American Political Science Review, 93 (June 1999), p. 342. 6 Richard F. Fenno, Jr., Congressmen in Committees, (Boston: Little, Brown, 1973). 7 David R. Mayhew, Congress: The Electoral Connection, (Yale University Press, 1974). 8 Ibid., p. 49. 9 Hoffman and Howard, Addressing the State of the Union. 10 Ibid. 11 The Weekly Compilation is available at: http://www.gpo.gov/ fdsys/browse/collection. action?collectionCode =CPD. Each year from 2001-2008 was searched for mentions of “faith-based” and checked to assure context was appropriate. Distinction was made between written and oral communications. 12 Kernell, Going Public, p. 115. 1

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Ibid. Ibid., pp. 121-23. 15 George W. Bush, “Commencement Address at the University of Notre Dame,” Weekly Compilation of Presidential Documents 37, no. 21 (20 May 2001), p. 781. 16 Dan Balz, “’Armies of Compassion” in Bush’s Plans,” Washington Post, (25 April 1999), p. A1. 17 Bush, “Remarks Announcing the Faith-Based Initiative,” Weekly Compilation 37, no. 5 (29 January 2001), p. 232. 18 Bush, “Remarks at the Fishing School,” Weekly Compilation 37, no. 5 (30 January 2001), p. 242. 19 Rallying the Armies of Compassion, 107th Cong., 1st sess., 2001, H.Doc. 107-36. 20 Bush, “Remarks at the Fishing School,” p. 242. 21 Bush, “Remarks in a Meeting with Catholic Charities,” Weekly Compilation 37, no. 5 (31 January 2001); Bush, “Remarks at the Republican Congressional Retreat in Williamsburg, Virginia,” Weekly Compilation, 37, no. 5 (31 January 2001), pp. 250-54. 22 Bush, “Remarks at the National Prayer Breakfast,” Weekly Compilation 37, no. 5 (1 February 2001), pp. 245-47. 23 Bush, “Address before a Joint Session of the Congress on Administration Goals,” Weekly Compilation, 37, no. 9 (27 February 2001), p 353. 24 For detailed discussions of Bush’s faith-based initiative and legislative history see Jo Renee Formicola, Mary C. Segers, and Paul Weber, Faith-Based Initiatives and the Bush Administration: The Good, the Bad, and the Ugly, (Lanham, MD: Rowman and Littlefield, 2003); and, Amy Black, Douglas L. Koopman, and David K. Ryden, Of Little Faith: The Politics of George W. Bush’s Faith-Based Initiatives, (Georgetown University Press, 2004). 25 Bush, “Statement on Proposed Legislation to Implement the Faith-based Initiative,” Weekly Compilation, 37, no. 12 (21 March 2001), p. 483. 26 Bush, “Remarks to the National Newspaper Association Government Affairs Conference,” Weekly Compilation, 37, no. 12 (22 March 2001), pp. 483-89. 27 Bush, “The President’s Radio Address,” Weekly Compilation 37, no. 14 (31 March 2201), pp. 559-60. 28 Bush, “Commencement Address at the University of Notre Dame,” Weekly Compilation 37, no. 21 (20 May 2001), pp. 779-83. 29 Ibid., p. 780. 30 Ibid., p. 781. 31 Ibid. 32 Ibid., p. 782. 33 Ibid., p. 783. 34 Formicola, Segers, and Weber, Faith-Based Initiatives and the Bush Administration, p. 8. 35 Bush, “Statement on Action by the House Ways and Means Committee on the Faith-Based and Community Initiatives,” Weekly Compilation 37, no. 28 (11 July 2001), pp. 1027-28; and, Bush, “Statement on House of Representatives Action on the Faith-Based and Community Initiative,” Weekly Compilation 37, no 29 (19 July 2001), pp. 1061-62. 36 Bush, “The President’s Radio Address,” Weekly Compilation 37, no. 34 (18 August 2001), pp. 1186-87. 37 Bush, “Letter to Congressional Leaders on Proposed “Armies of Compassion” Legislation, Weekly Compilation 37, no. 45 (7 November 2001), pp. 1612-13. 38 Bush, “The President’s Radio Address,” Weekly Compilation 37, no. 50 (8 December 2001), pp. 1172-73. 39 Bush, “Address before a Joint Session of the Congress on the State of the Union,” Weekly Compilation 38, no. 5 (29 January 2002), pp. 133-39. 40 Black, Koopman, and Ryden, Of Little Faith. 41 Formicola, Segers, and Weber, Faith-Based Initiatives and the Bush Administration, p. 13. Bush also signed the related EO 13280 which established Centers for Faith-Based and Community Initiatives in two other executive agencies. An international component appears for the first time. See, Office of Faith-Based and Community Initiatives, “Innovations in Compassion, The Faith-Based and Community Initiative: A Final Report to the Armies of Compassion,” (December 2008), (http://georgewbush-whitehouse.archives.gov/government/fbci /pdf/innovation-in-compassion.pdf). We confine our examination to the domestic aspects of the initiative. 42 Bush, “Remarks at the White House Conference on Faith-Based and Community Initiatives in Philadelphia, Pennsylvania,” Weekly Compilation 38, no 50 (12 December 2002), 2152-56. 43 Ibid., p. 2155. 44 The Senate passed the CARE Act in April 2003, but it was a watered-down version of Bush’s goals and it was not taken up in the House. 14

100 45

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The CCF operated as a demonstration project without permanent authorization. It was subsequently appropriated small funds by Congress from FY02 to FY08. See, U.S. Department of Health and Human Services, “Administration for Children and Families. Compassion Capital Fund Fact Sheet,” (2007), (http://www.acf. hhs.gov/programs/ccf/ about_ccf/facts.html); and, U.S. Department of Health and Human Services, “Administration for Children and Families, CCF Fact Sheet FY2008 (2012), (http://www.acf.hhs.gov /programs/ ocs/resource/fact-sheet). 46 Authorized in Promoting Safe and Stable Families Act of 2001(PL 107-133). 47 Office of Faith-Based and Community Initiatives, “Innovations in Compassion.” 48 Formicola, Segers, and Weber, Faith-Based Initiatives and the Bush Administration; Black, Koopman, and Ryden, Of Little Faith. 49 Bush, “Remarks at a Bush-Cheney Reception in Los Angeles,” Weekly Compilation 40, no. 10 (3 March 2004), pp. 325-29. 50 Hoffman and Howard, Addressing the State of the Union; and, Hoffman and Howard, “George W. Bush and the Rhetoric of Chief Legislator: The First Term,” presented at the Annual Meeting of the American Political Science Association, (2006). 51 Norman Ornstein and John Fortier, “Relations with Congress,” PS: Political Science and Politics 35 (2002), pp. 47-50. 52 Paul Light, The President’s Agenda: Domestic Policy Choice from Kennedy to Clinton, 3rd ed., (Johns Hopkins University Press), 1999. 53 Peter Baker, “White House Manual Details How to Deal with Protestors,” Washington Post, (22 August 2007). 54 See Bush, “Address Before a Joint Session of the Congress on the State of the Union,” Weekly Compilation 40, no. 4 (20 January 2004), pp. 94-101. 55 Bush, “Remarks at the Office of Faith-Based and Community Initiatives’ National Conference,” Weekly Compilation 44, no. 25 (26 June 2008), pp. 917.

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 8

DOING WELL VS. BEING GREAT: COMPARING THE BUSH AND OBAMA DOCTRINES Stanley Renshon City University of New York Graduate Center, New York, NY, US

ABSTRACT This analysis compares two presidential foreign policy doctrines and the psychology and worldview that are their foundations. It does so through the lenses of four elements that shape the choices that presidents make both in foreign and domestic policies: presidential ambition, self-confidence, worldview, and purpose. President Obama aspired to “greatness,” that he understood as the successful transformation of America’s role abroad and the nature of its political identity at home. His doctrine was the vehicle though which he would accomplish that purpose primarily by transforming America’s primacy abroad to more closely resemble the tenets of liberal internationalism that left him freer to attempt “nation building at home.” President Bush and his doctrine saw things differently. His primary responsibility, he thought, was to protect and improve the country, not transform it. Being “great” never seems to have occurred to Mr. Bush; being effective given the 9/11 attack understandably occupied all his time and focus. His major ambition thereafter in the presidency was to “do well” and not to be “great.”

The measure of every American president is to be found at the intersection of their ambitions, the circumstances they face, and the choices they make about them. By paying close attention to those choices, and not just presidential rhetoric, we get to truly know and understand the nature of a president’s leadership. How a president understands the situations he faces, how he views his role and that of the country in the world, and the ambitions he holds for both are core measures of his performance and legacy. Presidencies come into sharper relief in comparative perspective, yet one must proceed with caution. Every modern president, for example, is ambitious for themselves and their country, but as Presidents Bush and Obama, and their respective foreign policy doctrines make clear, not to the same degree and not for the same purposes.

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In the case of the Bush and Obama doctrines, a comparison is useful because the two presidents were operating sequentially in the same historical period, and were dealing with comparable international circumstances. Yet, their circumstances do differ dramatically in one fundamental respect. Mr. Bush’s presidency was upended by a major, successful attack on the United States. Mr. Obama faced that possibility, but it was diminished by the effective counterterrorism policies that Mr. Bush created. This analysis compares two presidential foreign policy doctrines and their psychology and worldview foundations. A president’s doctrine reflects his understanding of the world and how he views America’s role in it. It also reflects how he defines himself and his role as president, what he hopes to accomplish during his time in office, and the confidence in his own abilities to achieve it. My central argument here is that these four elements --presidential ambition, selfconfidence, worldview, and purpose shape the choices that presidents make both in foreign and domestic policy. I am not arguing that these four elements determine any presidents’ foreign policy doctrines regardless of world circumstances, since it would be absurd to ignore those. What I am arguing is that these elements have a great deal to do with how presidents understand and meet those circumstances. And nowhere is this clearer than by looking at the Bush and Obama Doctrines.1

PRESIDENTIAL AMBITIONS: LARGE AND GREAT All presidents are ambitious. Less appreciated, is the fact that among presidents there are significant gradations of ambitions. Most presidents want to be good; some want to be great.

GEORGE W. BUSH George W. Bush came into the presidency a late bloomer who had finally made good. He was an adequate, but not outstanding student at Yale and Harvard. As a young entrepreneur in the Texas oilfields, he worked hard and diligently, but never made the big strike. Troubled by waking up on his fortieth birthday with a hangover, he decided to change his life and did. He found god, baseball, and politics in that order, and the last became his calling.2 As governor he was mentored by Democratic Lt. Governor Bob Bullock, a crusty and legendary veteran of Texas politics, and learned to get along with the other side of the isle. The result was substantial amounts of bipartisan legislation. In his 2000 presidential campaign, he specifically ran as “A Reformer with Results,”3 promising the same for his presidency. That promise never got a fair tryout because of the 9/11 attacks, whose strategic implications required national survival to trump bipartisanship. Reformist presidents, like Mr. Bush run on a limited number of major policy initiatives, like education, to which they promise to devote their energies, and many smaller ones.4 Getting things done, being successful in moving policy in the desired direction are all hallmarks of reformist personal and policy ambitions. They want to make a difference and Mr. Bush was no exception.

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He once remarked that he didn’t come to the overall office to mark time, and that he wanted to do “big” things. That is different however than wanting to do “great” things. This marks mark him as fundamentally different than Barack Obama who publically aspired to be a “great” president5 even before he took office.

BARACK OBAMA Asked about this comment about wanting to be a great president on Meet the Press, Mr. Obama said this he had given it a lot of thought.6 Aspirations to be “great” are simply not in the same psychological league as wanting to do well. Embedded in the former is the assumption that you already posses the personal talents that lead to “greatness.” Not every president thinks of himself that way. “Great” presidents, as Mr. Obama aspired to be and thought himself capable of becoming, do not simply carry out a predecessor’s doctrines, however effective they might be. Greatness requires a unique vision, and the singular determination to carry it out. And in President Obama’s general framing approach to his foreign policies, his doctrine, we certainly see evidence of that fact.

A PRESIDENT’S PURPOSE On the question of “greatness, Tim Russert asked then Senator Obama, “And what would, in your mind, define a great president? Senator Obama answered, “... they transformed the culture and not simply promoted one or two particular issues.7 Notice the difference between a reformer who promotes “one or two particular issues,” and Mr. Obama’s aspiration to transform the culture. Embedded in Mr. Obama’s stated aspirations is the assumption that there is something fundamentally deficient in the United States as he finds it, something that simply can’t be reformed, but needs to be transformed.8 The general idea of reform presidencies like Mr. Bush’s is to improve things that need fixing, or to help to make good things better, or effectively carry out the more basic responsibilities of the presidency. When asked what he would like to be remembered for, Mr. Bush said this: “In terms of accomplishments, my biggest accomplishment is that I kept the country safe amid a real danger.”9 Recall that Mr. Bush wanted to do “big” things in the presidency, by which he certainly meant a laundry list of individual policy reforms. However 9/11 demanded of him something very singular, basic, and profound-- protecting the country from other, even worse attacks and he did.

AMERICA’S ROLE IN THE WORLD Foreign policy doctrines are responses to the issues that a president sees his country facing. Yet, they are also a reflection of the how that president sees their country’s role in the world. Modern presidents, no matter how they might personally wish to define it, begin with

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the widespread assumption at home and abroad, that by virtue of its power and modern historical position, this country is a world leader. Mr. Bush embraced that role; President Obama kept his distance from it.

Barack Obama Mr. Obama’s public remarks since entering office clearly suggest that he sees this country has having sometimes failed to live up to its promise and its promises. President Obama explicitly chastised the United States in a 2009 Prague speech, “as having a moral responsibility to act to abolish nuclear arms because it was the only nuclear power to have used a nuclear weapon.”10 Clearly that decision was morally tainted and called for redemptive, policies including unilateral deep cuts in the American nuclear arsenal,11 and the eventual abolition of those weapons. Proposals for “Global Zero”12 followed. In a European town hall meeting, President Obama said that the United States had “failed to appreciate Europe’s leading role in the world” and that “there have been times when America has shown arrogance and been dismissive, even derisive.”13 He said that, “we dismissed European reservations about the wisdom and necessity of the Iraq war.”14 At another international summit he said, “we have at times been disengaged, and at times we sought to dictate our terms. But I pledge to you that we seek an equal partnership.”15 And in the president’s first interview with an Arab newspaper he said of the United States, “all too often the United States starts by dictating ….”16 He went on to say, “the same respect and partnership that America had with the Muslim world as recently as 20 or 30 years ago, there’s no reason why we can’t restore that.”17 In a speech to the Turkish Parliament, President Obama spoke of America’s history of racism and our continuing struggle with it.18 And he also noted in the same speech that, “in the United States, we recently ordered the prison at Guantanamo Bay closed. That’s why we prohibited—without exception or equivocation—the use of torture.” This statement’s implication was that the United States had, until he prohibited it, practiced and condoned torture and tried to obfuscate its role in doing so. The striking thing about these criticisms is that were made by a president about his own country in foreign venues. In that sense they were both unusual and pointed. Republicans called these mea culpas on behalf of the country an “apology tour.” They had a fair point, but missed a larger one. Mr. Obama selective historical narrative was also meant to establish himself as someone unique and special. Here was a president who would not only tell the “truth” about America’s past failures to live up to its ideals, not only present himself as the embodiment of those neglected ideals, but also conduct his foreign policy in accordance with neglected ideals. That is the real psychological origin and worldview premise of the Obama doctrine.

George W. Bush During a 2000 election year debate, Vice President Al Gore said it was time for the United States to “step up to the plate as a nation,” and say, ”ok the United States is going to be the leader.” Mr. Bush replied “ I’m not so sure it’s the role of the United States to go

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around the world and say this is the way it’s got to be,” and a little later, “I think one way for us to be viewed as the ugly American, is for us to go around saying, we do it this way, so should you.”19 Notice the difference between Mr. Obama’s direct, assertive declarative. “America has shown arrogance and been dismissive, even derisive,” and Mr. Bush’s statement in response to Mr. Gore, regarding how he thinks the country ought to conduct itself. Mr. Bush began his presidency promising “a more humble foreign policy,”20 not because the country had been arrogant as Mr. Obama thought, but because he took the view that the United States could not always be the first or only responder to every demand for help.21 Mr. Bush never called attention, as Mr. Obama did, to America’s failure to recognize how right Europeans had been to criticize the Iraq war for the simple reason that he didn’t think they were right. Driving Saddam Hussein from power had been bi-partisan policy for many years before Mr. Bush became president. It became an imperative for Mr. Bush after 9/11 because that attack undermined the logic of conventional deterrence should terrorists ever gain WMD abilities. Nor did Mr. Bush ever public express the view that his country had acquired an international and historical moral deficit for having used two atomic bombs to end World War ll, most likely because he thought President Truman had made a difficult but correct decision. Paradoxically, given Mr. Obama’s view of the necessary correlation between America’s moral failure and the necessity to make amends by nuclear arms reduction, Mr. Bush reduced American nuclear weapons stockpiles on his own several times.22 Mr. Bush’s take on America’s place in the world was every bit as direct as Mr. Obama’s, but unequivocal. “Our nation [is] an active force for good in the world,” he said, and meant it.23

PRESIDENTIAL SELF-CONFIDENCE: ITS SOURCES AND FOREIGN POLICY CONSEQUENCES Self-confidence has a great deal to do with seeking the presidency, but more importantly what a president does once elected. Every presidential candidate believes him or herself capable of fulfilling the office’s enormous responsibilities and the stresses associated with them, and Presidents Bush and Obama are no exception. As noted, presidents differ with regard to the degree of their ambition and its nature, even though every modern president is ambitions. Yet presidents also differ regarding the degree of their self-confidence, the bases of it, and its implications for their leadership. Confidence can be understood as the degree of sureness one has regarding your ability to accomplish your goals given the choices you face. These, in turn, rest on a sense of optimism and the belief that the skills you have are up to the demands being placed upon them. Basically, self-confidence is the result of successful experience. However, that relationship is more complex than it seems. Confidence has two major dimensions. It consists of a strong sense of personal identity linked to a successful professional identity that gives one standing the world. We can, for ease, think of these two as involving skills related to personal confidence and occupational confidence, respectively. In good circumstances the

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two overlap in adulthood. Yet each has its own developmental path. If they don’t develop in tandem, difficulties can easily result. This is what happened with George W. Bush.

George W. Bush: Self-Confidence and Foreign Policy Judgments Growing up in a wealthy family that places few demands for comportment or performance on a child is a recipe for the development of arrogance. However, this does not much resemble the Bush family. George W.’s father was raised to avoid self-promotion and his mother, Dorothy Walker Bush, enforced that rule with a vengeance. “We,” not “I,” was the chief pronoun in the Bush household. Service, not self-aggrandizement, was a primary Bush family value. And, of course, an ethos of civic and public service is inconsistent with a psychology of narcissism and entitlement. There is no doubt that family connections paved the way as he tried to find his place as an adult. But that help provided him only with opportunities. The accomplishments, when they happened, were his. In short, Mr. Bush may have been privileged, but he was not spoiled. During his early adulthood, George W. perfected his “rebel” role, but he did so while pursuing very conventional ideas of occupational success. Part of that role contained a certain degree of bravado, even cockiness. The hard-living, hard-drinking entrepreneurial Bush family rebel was at least part pose, part reality. And in my view it was a compensation for feeling stymied since his occupational skills never fully brought the success he sought. This raises a question: if Mr. Bush never really substantially succeeded, even though he grew up loved, and developed substantial interpersonal skills, where did he acquire the success that is the foundation of his self-confidence. The answer to that question is baseball and politics. Mr. Bush’s experience as partial owner and public face of the Texas Rangers was something he enjoyed and proved to be good at. That experience provided an occupational success that allowed him to the risk, again, aiming for a political career. His successful long shot race against a Texas icon, Ann Richards brought him to the statehouse as governor. And it was there that he learned about leadership, decisionmaking and governing and found that was good at them too. His experience as governor honed his political and leadership skills and he also became a student of leadership.24 As governor, Mr. Bush was no Bill Clinton. He had little patience for grand philosophical debate, endlessly carried on. He was interested in what worked, and that was the focus of his policy curiosity. There is something to be said for grand philosophical debates that can often uncover the layers of complexity that lurk well beneath what’s ordinarily visible after normal policy debate. That is why to Mr. Bush’s critics, any confidence he had was misplaced. In their view he had limited intelligence, limited intellectual curiosity, and a tendency to shoehorn reality into a limited set of black or white categories. Those harsh characterizations are factually wrong Yet, raising them allows us to consider that there are many positive aspects to a president who grasps the essential realities of a set of circumstances, is able to put aside what he thought he knew or expected about the world, and decisively acts accordingly. Mr. Bush’s comment to aides on learning that a second plane had crashed into the World Trade Center Towers, “We’re at war” almost perfectly captured this set of capacities.

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To his critics, George W’s brash public assertions after 9/11—that he wanted Osama Bin Laden “dead or alive,” that nations were either “for us or against us,” and his “Bring it on” taunt to Saddam loyalists after the fall of Bagdad served to reinforce the erroneous narrative of his limited, arrogant thinking. There was an element of bravado there, especially in his “bring it on” comment, but the “dead or alive” and the “for us or against us” statements seems closer to reflecting anger at what was done to the country he led, was responsible for, and clearly loved. It was also an effective bit of strategic rhetoric to help push any reluctant “allies” into more helpful roles. It is true that Mr. Bush showed a great deal of certainty about what needed to be done after 9/11 and conviction in carrying those policies out. That included the creating the architecture of the “world-wide war on terror” and the fateful invasion of Iraq. That war was initiated under the assumption, after 9/11, that nuclear terrorism was not only possible but a goal of the groups that attacked the United States. It also reflected the view that dangerous dictators, like Saddam Hussein, who sought WMDs, who had shown a taste for territorial aggression and who had a record of supporting terrorists could no longer be tolerated. Or, as Mr. Bush put it, “The gravest danger to freedom lies at the perilous crossroads of radicalism and technology… the spread of chemical and biological and nuclear weapons, along with ballistic missile technology—when that occurs, [means] even weak states and small groups could attain a catastrophic power to strike great nations.”25 That war was brutal, costly, and increasingly controversial, and Mr. Bush expressed few doubts about its wisdom. This too led to accusations that the president was too arrogant to admit he had been wrong both about the invasion and the conduct of the war. That issue arose publicly when Mr. Bush was quoted as saying he had no regrets about the decisions he had made.26 That immediately caused a storm, because it suggested that Mr. Bush felt he had not made any mistakes, or had no doubts about his decisions. It is true that a president with doubts is more likely to be prudent than one without them. Yet doubts are a double-edged sword for presidents and their advisors. Too many doubts inhibit action that may be risky, but necessary. Too little doubt may lead to premature of unnecessary action. Mr. Bush did say at a town meeting that, “I was quoted in the press the other day as saying I haven’t regretted one thing I’ve decided. And that’s the truth. Every decision I’ve made I stand by, and I’m proud of the decisions I’ve made.27 However, in a nationally televised interview with Barbara Walters, the subject came up again. She asked the president about the quote and asked skeptically, “You never have doubts?” to which Mr. Bush replied, “If I do I’m not going to air them on national TV.”28 Perhaps there is a useful distinction to be drawn here. There are the doubts, uncertainty, and analyses that occur before reaching decisions. And there is the public second- guessing of decisions after they are made. Expressing such regrets would lead to an expectation or even a demand for a public apology for the mistakes, as was requested of Mr. Bush several times for his “failure” to foresee the 9/11 attacks. And if course if a president publically regrets a decision, there will inevitable be calls to reverse it.

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Barack Obama’s Self-Confidence Mr. Obama’s self-confidence is legendary and much remarked upon. One of his biographers, who covered him during his time in Chicago, wrote that, “He emanates supreme self-confidence at almost every moment,”29 Obama’s very close friend and confidant, Marty Nesbitt, spoke of Obama’s “supreme confidence.”30 Peter Rouse, a thirty-year veteran of Capitol Hill who Mr. Obama recruited to organize his Senate office and staff said, “that in his thirty years on Capitol Hill, he had never seen anyone with more faith in himself.”31 News accounts by those who cover the president and his advisors quickly reported similar conclusions. Reporting on the efforts that went into the stimulus package, the Washington Post reported that the “fledgling administration, which came to Washington with equally high measures of ambition and confidence in its ability to quickly begin remaking the country.”32 Two Los Angeles Times reporters covering President Obama’s meeting with a group of bankers noted, “Direct, assertive and utterly self-assured, Obama has used his broad popularity, a driving ambition and a sweeping agenda to move America in a wholly new direction.”33 Another veteran reporter covering Mr. Obama’s first thirty days in the White House noted his “serene-self confidence,” but worried that “it can cause blind spots.”34 Mr. Obama for his part has said of himself, “I have high expectations of myself and I usually meet them.”35 Looking back on the period shortly before he was inaugurated, he told David Remnick that, “I wasn’t scared. I think at that point I had a pretty firm grasp on what the moment required.”36 Asked in a post election interview, “Have there been moments when you’ve said ‘What did I get myself into?’” he replied, “Surprisingly enough, I feel right now I’m doing what I should be doing.”37 Speaking to his advisor David Axelrod earlier, during the transition period he said, “The weird thing is, I know I can do this job. I like dealing with complication issues. I’m happy to make decisions. I’m looking forward to it. I think it’s going to be an easier adjustment for me than the campaign. Much easier.”38 This quote precisely captures the uneasy relationship between self-confidence (“I know I can do this job”) and incipient arrogance, even grandiosity (“it’s going to be much easier”). It is not hyperbole to say that Mr. Obama considers himself his own best, most knowledgeable adviser. At one point during his first presidential campaign, he asserted that in picking a Vice Presidential nominee he didn’t have to worry about foreign policy experience because, “Ironically, this is an area--foreign policy is the area where I am probably most confident that I know more and understand the world better than Senator Clinton or Senator McCain.”39 Asked after the presidential campaign about the best advice he had received while running he replied, “Well, I have to say it was the advice that I gave to myself.”40 In July of 2007, he told a group of fundraisers, “I’m the best retail politician in America.”41 In early 2007 when Mr. Obama interviewed Patrick Gaspard, who became the campaign’s political director, he told him, “I think that I’m a better speechwriter than my speechwriters. I know more about policies on any particular issue than my policy directors.”42 Jonathan Alter, writing on Mr. Obama’s view of his foreign policy said that, “Obama immodestly believed the strategy on proliferation has been ‘pretty flawless.’”43 He further added, “The president was proud—maybe too proud—of his record abroad. He described what he called a ‘pretty flawless execution of what our strategy was at the beginning of the year.’”44

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Ambition and the Acknowledgment of Limits The advantages of such legendary levels of self-confidence are clear. They allow someone like Mr. Obama, without the ordinary résumé of a presidential candidate to take the risk, and jump in, and in Mr. Obama’s case win. Winning in itself is a great self-confidence booster, and winning the presidency is an enormous one. However, the skills needed to win the office are not the same as the skills necessary to do well once you are in it. The downside of overarching self-confidence is that it often leads to not really considering other viewpoints. And it can result in continuing to follow your ambition’s desires when evidence is accumulating that something is wrong. It’s somewhat ironic that Mr. Bush’s critics accuse him of exactly the characteristics that could more accurately be applied to Mr. Obama. Mr. Bush’s curiosity was focused on “what worked,” Mr. Obama’s on how he could realize his transformational ambitions. Mr. Bush was often accused of “black or white” thinking because of his tendency to try and find the essence of an argument and act on it. Mr. Obama prides himself on being well versed on every side of an argument, including those of his opponents. Yet, his strong ideological convictions coupled with his enormous self-assurance, and equally vast ambitions have trumped any real consideration of common ground policy alternatives even when in both foreign and domestic policies there was strong evidence that his weren’t working. The chief domestic example of this is the president’s determination to govern from the strong left regardless of that they public wanted—a decision that first cost Democrats control of the house and then the Senate too. His decisions to pursue massive health care legislation, rather than jobs, and his 2014 executive orders on immigration are further cases in point. On the foreign policy side there is the administration’s repeated view that that al Qaeda was “on the path to defeat”45 or “decimated.”46 Those assertions were hard to reconcile with the rise of various terrorists affiliated and successor groups to al Qaeda in Libya, Iraq, Syria, Yemen, and part of Africa. When Mr. Bush lost the immigration debate and the legislation he supported for it in 2007 was defeated, he ordered his staff to come up with every possible immigration change he could make without the approval of Congress. Gregory Jacob, who worked on immigration issues with the president's Domestic Policy Council, said the list included similarly broad protections from deportation as those implemented by Obama. But Bush's staff concluded that the president didn't have the legal authority to grant such ‘sweeping and categorical’ protections.”47 And he moved on. When the Obama Administration’s 2013 immigration bill stalled in the Senate, he issued a sweeping set of executive orders conferring legal standing without any Congressional authorization, a path that Mr. Bush considered, but declined to carry out. And in foreign policy of course, Mr. Bush did reverse course in the conduct of the war by initiating the 2007 “Surge” in Iraq, that reversed a stabilized a deteriorating situation.48 Of that decision Robert Gates said of Mr. Bush he, “risked reputation, public esteem, credibility, political ruin and the judgment of history on a single decision he believed was the right thing for the country.”49 And this brings us directly back to the Bush and Obama Doctrines.

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9/11 POSES SOME BASIC QUESTIONS In response to the assumption shattering 9/11 attacks, the Bush Administration was faced with five major questions, some of which the Obama Administration also faced but not in such urgent form: 1) How can the United States and its allies avoid being the victim of another major terrorist attack, this time with weapons of mass destruction (WMDs)? 2) What role do the doctrines of prevention, preemption, containment, and deterrence play in the range of threats with which the United States and its allies must now contend? 3) How can the United States resolve the dilemma of needing the cooperation of its allies to address common threats, while having to deal with allies’ different priorities and understandings of these very threats that may require the United States to occasionally act without their help? 4) How can the United States resolve the dilemma of needing international institutions to further develop a liberal democratic world order and its own legitimacy with the fact that a number of the members of the “international community” are not democratic, liberal, nor supportive of the assumptions that underlie that liberal international order. 5) How can the United States address the challenge of a fervent and aggressive religious ideology, some of whose elements are potentially attractive to billion of followers worldwide?

THE BUSH DOCTRINE’S CONCEPTUAL ANSWERS TO THESE QUESTIONS The Bush Doctrine answered these questions with five basic ideas and a series of policies that flowed from them:

American Primacy The United States is and must remind among the world’s most powerful nations, strong enough to give any enemy pause, and reassure allies. This also involves the United States taking a strong leadership role in organizing and pursuing a worldwide effort to root out the dangers of catastrophic terrorism before they are manifested in further, more lethal attacks. American power’s purpose is not to be used for “dominating others with our power,”50 but to insure that no great power, or coalition of great powers dominates or endangers our friends.”51

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Assertive Realism This is not the theoretical realism of Hans Morgenthau; it is the realism of looking facts as they are in eye, and not flinching from their implications. The exemplar of that idea occurred when on January 2002, Israeli commandos seized a ship carrying 58 tons of weapons bound for Palestinian-controlled territory. The captain of the vessel revealed that he was to deliver the weapons to Fatah, a part of Mr. Arafat’s organization.52 In response, Mr. Arafat ordered an “investigation.” By April, President Bush said that Arafat had not earned his trust because “Here’s a man who says he’s signed on to Oslo, that he was going to fight off terrorism. . . . a couple of month[s] ago that we thought we had an agreement. The next thing we know, he’s ordering a shipment of arms from Iran.”53 By June 24 of that year, Mr. Bush had come fully to the position that marked a startling departure from recent American policy based on attempts to broker a Middle East peace agreement with Yasser Arafat. In a Rose Garden address, President Bush called on “the Palestinian people to elect new leaders not compromised by terror.” Asked almost two years later about Mr. Arafat, the president said, “I took an assessment of what was possible and realized that it was impossible to achieve peace with Chairman Arafat.”54 Mr. Bush and the Administration stopped thinking of him as someone who could help the Middle East peace process and instead saw him for what he was, and cut off contact with him.55

Stand-Apart Alliances The third element of the Bush Doctrine is a focus on strategic, stand-apart alliances most notably reflected in the phrase “collation of the willing.” That meant that not every ally might join a common cause in the same way. However, whoever did join, and whatever they did contribute would be in association with the United States taking on the major part of the effort. The United States in Mr. Bush’s mind, was the leader of a world alliance, and it was that alliance, as well as the United States that was under threat by the events of 9/11.

A NEW INTERNATIONALISM AND SELECTIVE MULTILATERALISM The Bush Doctrine was fundamentally concerned with how, exactly, American national security policy should engage international institutions. The Bush Doctrine viewed these institutions as not structured or operating in a way that allowed them to effectively fulfill their important roles. Certainly, the United States could not depend on them when concerns of vital national security arose.

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Democratic Transformation The Bush Doctrine emphasized expanding democracy into difficult and inhospitable places. This was not altruism, but a strategy predicated on the assumption that democracies were less likely to fight each other, and even those countries that tried to become more democratic would look inward toward responding to the needs of their people rather than looking outward and causing trouble. It is obvious that the Bush Doctrine was developed to confront the specific circumstances of a new, potential lethal non-state actor threat to the United States. It substituted the more active strategy of preemption for the more passive one of containment. And it employed an offensive strategy in the absence of being able to make credible threats against valued assets of opponents that is the basis of deterrence. It also developed new standards by which to judge friends, enemies and those whose status was equivocal. It substituted a commitment to the growth of freedom and democracy for containment’s long-term strategy of waiting for the mellowing of ideological fervor that would by a byproduct of the passage of time.

THE OBAMA DOCTRINE-AGREEMENT IN PRINCIPLE BUT NOT IN PRACTICE One key test for the legacy of the Bush Doctrine is whether presidential successors find it useful and keep its key elements in place. And to a substantial degree, with caveats to be examined, President Obama seemed at first look to have done so. Mr. Obama faced some of the same questions at the start of his administration, as Mr. Bush did after 9/11. And it seemed that Mr. Obama’s foreign policy frameworks, at least as rhetorically during his first presidential campaign resembled those of Mr. Bush. It is this symmetry and overlap that earned the New York Times headline: “Obama’s War on Terror May Resemble Bush’s in Some Areas.”56 On American primacy, Mr. Obama said this:57 “America cannot meet the threats of this century alone, but the world cannot meet them without America,” which sounds very similar to the Mr. Bush’s understanding of American Primacy. On Assertive Realism as an offensive strategy, Mr. Obama had this to say about answering the challenges brought about by 9/11, “A 21st century military [has] to stay on the offense, from Djibouti to Kandahar,” and further that,” the ability to put boots on the ground will be critical in eliminating the shadowy terrorist networks we now face.”58 On a New Internationalism and Selective Multilateralism, Mr. Obama said, “And it is important that we don't provide veto power to the United Nations or anyone else in acting in our interests.”59 And on Democratic Transformation, Mr. Obama had this to say: “We have heard much over the last six years about how America’s larger purpose in the world is to promote the spread of freedom – that it is the yearning of all who live in the shadow of tyranny and despair. I agree.”60 Mr. Bush a conservative Republican and Mr. Obama a liberal Democrat even seemed to agree on military budgets and readiness. Mr. Obama said that, “We must maintain the

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strongest, best-equipped military in the world to defeat and deter conventional threats.”61 Those words sound remarkably similar to Mr. Bush’s before a joint session of Congress on September 20, 2001: “It is time to reaffirm the essential role of American Military strength. We must build and maintain our defense beyond challenge…our military must, “dissuade future military competition.”62 The thoughtful foreign policy analyst Robert Kagan wondered at the time if Obama’s “... statements only reflect what he and his advisers think Americans want to hear.”63 Fair question, and as the Obama Administration’s approach to foreign policy has evolved over time its distance from the tenants and policies of the Bush doctrine have become clearer.

THE REAL OBAMA DOCTRINE President Obama faced less immediately dire international circumstances than George Bush did after 9/11. Obviously, the world does not lack for difficulties, Syria, Iraq, Iran, and Russia among them, but this president did not appear to see any overriding imminent threat facing the United States. As a result, Mr. Obama’s foreign policies were less dependent on addressing urgent international circumstances, than was Mr. Bush’s presidential fate. In their place however, and every bit as powerful, were President Obama’s own worldview and transformative ambitions, both domestically and internationally. The president has made it clear that he has deeply held convictions about the nature of America’s role abroad, its blemished history, and his ambitions to develop for it a new international role. President Obama’s ambition is to redeem American foreign policy by trying to “dramatically reshape the country's foreign policy,”64 in other words, to transform it. In attempting to so, President Obama has attempted to stitch together a hybrid foreign policy doctrine out of disparate and ill-fitting parts. Like Mary Shelley’s Frankenstein creature, the Obama Doctrine wants American to be known for what’s in its heart, not for its size and power. But what, really, is at its policy core? There is of course, the legacy of his predecessor, George W. Bush, whose own doctrine provided a rhetorical foil for the president’s election campaign and a negative policy leitmotif of his first four years in office.65 Yet it’s entirely obvious, despite the rhetoric, that President Obama was a strong enforcer of the most basic elements of the Bush Doctrine. Indeed in some respects he has expanded Mr. Bush’s policies. The administration has continued the Bush Administration policy of using remotely piloted aircraft to attack militants within Pakistan’s borders66, and has expanded the target list.67 Moreover, this administration developed and argued in favor of a policy that allows the lethal targeting of Americans fighting with al-Qaida affiliates abroad.68 When it comes to direct, demonstrated threats to the United States, of the kind represented by al Qaeda and its affiliates, President Obama is no pacifist. That fact, however, is only part of the administration’s foreign policy stance and not, its preeminent one now. There are also the president’s very strong convictions and transformative ambitions that need to be considered. And they run counter to the premises and direction of the Bush Doctrine that the president has adopted in part. Mr. Obama and his advisors disclaim any interest in developing an Obama Doctrine, insisting they take the world as they find it on a case- by- case basis.69 The broad contours of

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the Obama Doctrine—a lighter military footprint, a reliance on coalitions, and a preference to concentrate on domestic policy with its transformational potential however are easily discernable. But such analyses error in not stepping back and noticing the broader transformational and redemptive origins of what the president is trying to accomplish both at home and abroad because the two are very much related. Doing so leads to focusing on four major elements of the Obama Doctrine: 1) Redemptive transformation: The president wants to transform both U.S. foreign and domestic policy in the service of redeeming America’s past failures to live up to its promises and premises. However, domestic transformation is primary and foreign policy redemption is in the service of domestic transformation. 2) Managing diminished primacy: American primacy is receding and this requires a new emphasis on liberal international tenants of international cooperation. Fortunately, the necessary adjustments to American primacy are consistent with a focus on rebuilding America at home. 3) Risk permissiveness: The Obama Doctrine’s emphasis on transformative and redemptive foreign policies, coupled with changes in strategic mission/tactics and budget support, will entail greater military and national interest risks abroad. One example is the risk of reaching a nuclear accord with Iran that will not be adequately verified. These are risks that the president is willing to undertake on his own behalf and on behalf of the country. 4) “Hidden-hand” International Leadership: In cases where American power is used abroad it may involve military power, so long as it is limited and preferably masked or embedded in a collective effort. The administration’s emphasis on embedding the exercise of its power in collective initiatives, with its attendant advantages and limitations is easily seen in Libya, but elsewhere as in Syria as well. What makes the Obama Doctrine unique is that it is not so much aimed at foreign rivals or opponents, but at the behavior of the United States itself. The world can often be a dangerous place and the president recognizes this. That recognition has led him to embrace critical elements of the Bush Doctrine and has even led to an expansion of some aspects of it. But that expansion has, paradoxically been very narrow, applying military force in short bursts or in small, sharp doses not easily seen by the outside world of which his drone strategy would be a good illustration. The far larger part of the part of the president’s foreign policy agenda is to downsize American primacy, reducing worldwide expectations for American action and leadership in every problem that others want addressed. In that stance, Mr. Obama believes, lies redemption for America’s past sins—its arrogance, unilateralism, and occasional determined military assertion of its own national interests. And the downsizing of American international primacy is also instrumental in other absolutely core presidential ambition—transforming American domestic policy and culture in line with Obama’s view of our past failures to live up to our ideals. Mr. Obama is by inclination and preference a domestic policy president. In foreign policy, and especially in those areas bequeathed to him by America’s 9/11 experiences and the Bush Doctrine’s response to them, President Obama has been a reluctant, but effective follower of his predecessor’s policies. In most other areas of American foreign policy though,

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his reluctance regarding American primacy and power has become administration policy, enshrined in the Obama Doctrine. This president aspires to greatness and for him that means successful transformation of America’s role abroad and the nature of its political identity at home. The real Obama Doctrine is the president’s vehicle for transforming America’s primacy abroad to more closely resemble the tenants of liberal internationalism. Exercising limited, embedded and unobtrusive primacy frees the president to pursue what are clearly his most cherished presidential ambitions, domestic “national building” consistent with the president’s view of America’s past political and moral failures and the policies needed to redeem its moral legitimacy and promise. President Bush and his doctrine saw things differently. His primary responsibility, he thought, was to protect and improve the country, not transform it. Being “great” never seems to have occurred to Mr. Bush; being effective given the 9/11 attack understandably occupied all his time and focus. His major ambition thereafter in the presidency was to “do well” and not to be “great.”

ENDNOTES This paper draws on several previous efforts on my part to analyze one or both doctrines. See: “Understanding the Obama Doctrine,” White House Studies, 12:13, (2013) 187-202; “Foreign Policy Legacies of American Presidents,” in Timothy J. Lynch (ed.) Oxford Encyclopedia of American Military and Diplomatic History. Cambridge and New York: Oxford University Press, 2012; “George W. Bush’s Foreign Policy: Controversy and Legacy,” in Timothy J. Lynch (ed.) Oxford Encyclopedia of American Military and Diplomatic History. Cambridge and New York: Oxford University Press, 2012; National Security in the Obama Administration: Reassessing the Bush Doctrine. New York: Routledge Press, 2010; National Security and the Bush Doctrine: A Legacy of the George W. Bush Presidency,” in Stephen Scheir (ed.). Ambition and Division: Legacies of the George W. Bush Presidency, Pittsburgh, Pa.: University of Pittsburgh Press, 20009; pp. 267-284; “Premature Obituary: The Future of the Bush Doctrine,” in Stanley A. Renshon and Peter Suedfeld (eds.) Understanding the Bush Doctrine: Psychology and Strategy in an Age of Terrorism. New York: Routledge, 2007; “The Bush Doctrine Reconsidered,” in Stanley A. Renshon and Peter Suedfeld (eds.) Understanding the Bush Doctrine: Psychology and Strategy in an Age of Terrorism. New York: Routledge, 2007. 2 For a fuller treatment of Mr. Bush’s developmental history, psychology, and leadership in his presidency, see Stanley Renshon, In his Father’s Shadow: The Transformations of George W. Bush. Palgrave/Macmillan, 2004. 3 Richard A. Oppel, Jr. and Jim Yardley, “The 2000 Campaign: The Texas Governor; Bush Calls Himself Reformer; the Record Shows the Label May Be a Stretch,” New York Times, March 20, 2000. 4 Cf. For a listing of all the initiatives that president promoted to some degree see “Fact Sheet,” George W. Bush, “State of the Union Address,” Washington, D.C., February 2, 2004. http://georgewbush-whitehouse. archives.gov/stateoftheunion/2005/d. 5 Obama quoted in Robin Givhan, “Mussed for Success: Barack Obama’s Smooth Wrinkles,” Washington Post, August 11, 2006. 6 Transcript, “Meet the Press,” NBC, October 22, 2008 (emphasis added). http://www.msnbc.msn.com/id /15304689/#. 7 Transcript, “Meet the Press,” NBC, October 22, 2008 (emphasis added). 8 For a fuller accounting of this dynamic see Stanley A. Renshon. Barack Obama and the Politics of Redemption. New York: Routledge Press, 2012. 9 George W. Bush quoted in Becky Schlikerman, “Bush promotes book in Chicago: Former president reflects on his legacy — and pokes fun at himself,” Chicago Tribune, October 21, 2010. 10 Office of the President, “Remarks by President Barack Obama,” Prague, Czech Republic, April 5, 2009.” At: http://www.whitehouse.gov/ the_press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Delivered. 11 Robert Burns, “U.S. weighing steep nuclear arms cuts,” Associated Press, February 14, 2012. 1

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Office of the President, “Remarks by President Barack Obama,” Prague, Czech Republic,” April 5, 2009. Office of the President, “Remarks by President Obama at Strasbourg Town Hall,” April 3, 2009. http://www.whitehouse.gov/the-press-office/remarks-president-obama-strasbourg-town-hall. 14 Barack Obama, “Renewing American Leadership,” Foreign Affairs, July/August 2007, p.11. 15 Office of the President, “Official Remarks of the United States President Barack Obama at the Opening Ceremony of the Fifth Summit of the Americas, Port of Spain, Trinidad and Tobago,” April 17–19, 2009. http://www.whitehouse.gov/the_press_office /Remarks-by-the-President-at-the-Summit-of-the-AmericasOpening-Ceremony/. 16 “Transcript: Obama’s Interview with Al Arabiya,” January 27, 2009. http://www.alarabiya.net/articles /2009/01/27/65096.html. 17 Transcript: Obama’s Interview with Al Arabiya.” 18 “Office of the President, “Remarks by President Obama to the Turkish Parliament,” Turkish Grand National Assembly Complex Ankara, Turkey. April 6, 2009. http://www.whitehouse.gov/the_ press_office/ RemarksBy-President-Obama-To-The-Turkish-Parliament. 19 Transcript: The Second Gore-Bush Presidential Debate,” October 11, 2000. (emphasis added) http://www.debates.org/?page=october-11-2000-debate-transcript. 20 “Transcript: The Second Gore-Bush Presidential Debate,” October 11, 2000. 21 Cf., Speaking of American involvement abroad, Mr. Bush said, “We can help… I want to help people help themselves, not have government tell people what to do… I know we've got to encourage democracy in the marketplaces. But take Russia, for example. We went into Russia, we said here is some IMF money, and it ended up in Viktor Chemomyrdin's pocket, and others, and yet we played like there was reform. The only people that are going to reform Russia are Russia. They're going to have to make the decision themselves. Mr. Putin is going to have to make the decision as to whether or not he wants to adhere to rule of law and normal accounting practices so that if countries and/or entities invest capital, there's a reasonable rate of return, a way to get the money out of the economy.” Transcript: The Second Gore-Bush Presidential Debate,” October 11, 2000. 22 Usha Sahay and Kingston Reif,” “Non-Treaty Cuts to the U.S. Nuclear Stockpile,” Center for Arms Control and non-proliferation, Washington, D.C., November, 2013, p. 8-9. http://armscontrolcenter.org/publications /reports/Non-Treaty_Cuts_to_the_U.S._ Nuclear_Stockpile.pdf. His cuts included the following: In November 2001, President George W. Bush announced that the United States would reduce the size of its nuclear stockpile unilaterally in accordance with the conclusions of its nuclear posture review, regardless of whether Russia cooperated; (2) the administration quietly – and unilaterally withdrew number of U.S. nuclear weapons deployed in Europe, including some deployed in Greece, Germany, and the United Kingdom; and (3) Mr. Bush unilaterally the total size of the nuclear arsenal was unilaterally reduced by about half, from 10,526 warheads to 5,113. 23 George W. Bush, “State of the Union Address, “Washington, D.C., February 2, 2005. http://georgewbushwhitehouse.archives.gov/news/ releases/2005/02/20050202-11.html 24 At a press conference, Mr. Bush was asked about his views of leadership and his response included the following: The leader cannot do everything and therefore must surround himself with smart capable people; A leader must listen, but be decisive enough to make a decision and stick to it; In order to lead, you must know what you believe. You have to stand on principle. You have to believe in certain values and defend them at all costs; As leader, you must have a vision about where you’re going. You must set clear goals and convince people of these goals and constantly lead toward these goals; You’ve got to treat people on your team with respect. See George W. Bush, “Remarks and a Question- and- Answer Session With Students at St. Petersburg State University in St. Petersburg,” (May 25, 2002) Weekly Compilation of Presidential Documents, 3 June 38:22, 913-918. Elsewhere, Mr. Bush has added to these leadership principles; see George W. Bush, “Remarks on Transmitting Proposed Tax Cut Plan to Congress,” (February 8, 2001) Weekly Compilation of Presidential Documents, 12 February, 37:6, 271-273. 25 Office of the White House, “President Bush Delivers Graduation Speech at West Point,” June 1, 2002. http://georgewbushwhitehouse.archives.gov/news/releases/ 2002/06/20020601-3.html. 26 Dana Milbank. “A Doctrine of Presidential Infallibility,” Washington Post, January 8, 2002, A15. 27 George W. Bush, “Remarks at a Townhall Meeting in Orlando,” (December 4, 2001) Weekly Compilation of Presidential Documents, (December 10) 37:49, 1743-54. 12 13

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Barbara Walters, “Interview with President George W. Bush and First Lady Barbara Bush,” ABC News Special, 7 December 2001. 29 David Mendell. Obama from Promise to Power. New York: Harper, 2007, p. 1. 30 Mendell, Obama, p. 154. 31 Jonathan Alter, The Promise: President Obama Year One. New York: Simon and Shuster, 2010, p. 140. 32 Scott Wilson, “Bruised by Stimulus Battle, Obama Changed His Approach to Washington,” Washington Post, April 29, 2009. 33 Faye Fiore and Mark Z. Baraba, “Ambition and Audacity: Obama begins leading America in a new direction,” Los Angeles Times, April 19, 2009. 34 Elizabeth Drew, “The Thirty Days of Obama,” New York Review of Books, March 26, 2009. 35 Obama quoted in Mendell, Obama, pp. 278-79. 36 Obama quoted in David Remnick. The Bridge: The Life and Rise of Barack Obama. New York: Vintage, 2011, p. 573 (emphasis added). 37 Steve Croft, “Obama on Economic Crisis, Transition,” CBS News, November 16, 2008. Available at: http://www.cbsnews.com/stories/2008/11/16/60minutes/main4607893. shtml 38 Obama quoted in Alter, The Promise, pp. 4-5 (emphasis added). 39 Quoted in Mayhill Fower,” Obama: no need for Foreign Policy Help from V.P.,” Huffington Post, 7 April 2008 (Emphasis in original). 40 Dan Balz and Haynes Johnson. The Battle for America, 2008: The Story of an Extraordinary Election. New York: Viking, 2009, p. 28. 41 Obama quoted in Alter, The Promise, p. 150. 42 Obama quoted in Ryan Lizza, “Battle Plans; How Obama Won,” New Yorker, November 17, 2008. 43 Obama quoted in Alter, The Promise, p. 348. 44 Obama quoted in Alter, The Promise, p.429. 45 Office of the President, “Remarks by the President at a Campaign Event - Las Vegas, NV,” September 10, 2012. http://www.whitehouse.gov/ the-press-office/2012/09/12/ remarks-president-campaign-event-las-vegas-nv. 46 Office of the President, “Remarks by the President at a Campaign Event - Green Bay, WI,” November 1, 2012. http://www.whitehouse.gov/the-press-office/2012/11/01/ remarks-president-campaign-event-green-bay-wi 47 Alicia A. Caldwell, “Experts: Obama can do a lot to change immigration,” Associated Press, August 4, 2014, (emphasis added). 48 Peter R. Mansoor. Surge. New Haven, Ct., Yale University Press, 2013. 49 Robert M. Gates. Duty: Memoirs of a Secretary of War. New York; Knopf, 2014. 50 George W. Bush, “A Distinctly American Internationalism,” Ronald Reagan Presidential Library, Simi Valley, CA., November 19, 1999. (http://www.fas.org/news/ usa/1999/11/991119-bush-foreignpolicy.htm) 51 Bush, “A Distinctly American Internationalism.” 52 Greg Myre. “Captain links cargo of weapons to Fatah,” Associated Press, January 8, 2003. 53 George W. Bush “Interview With the United Kingdom’s ITV Television Network (April 4, 2002), Weekly Compilation of Presidential Documents, 15 April 38:15, 571-576. 54 George W Bush. “Interview With Nile TV of Egypt,” (May 29, 2003) Weekly Compilation of Presidential Documents, 2 June, 39:22, 676-677. 55 Daniel C. Kurtzer, Scott B. Lasensky, William B. Quandt, Steven L. Spiegel, and Shibley Telhami. The Peace Puzzle: America's Quest for Arab-Israeli Peace, 1989–2011. Ithaca, NY. Cornell University Press, 2012, p. 165. 56 Charles Savage,” Obama’s War on Terror May Resemble Bush’s in Some Areas,” New York Times, February 17, 2009. 57 “Remarks of Senator Barack Obama to the Chicago Council on Global Affairs,” Chicago, Illinois, April 23, 2007. http://www.cfr.org/elections/ remarks-senator-barack-obama-chicago-council-global-affairs/p13172. 58 “Remarks of Senator Barack Obama to the Chicago Council on Global Affairs,” Chicago, Illinois, April 23, 2007. 59 “Transcript: Second Presidential Debate 2008,” New York Times, October 7, 2008. http://elections.nytimes.com /2008/president/debates/ transcripts/second-presidential-debate.html. 60 “Remarks of Senator Barack Obama to the Chicago Council on Global Affairs,” Chicago, Illinois, April 23, 2007. 61 “Remarks of Senator Barack Obama to the Chicago Council on Global Affairs,” Chicago, Illinois, April 23, 2007. 62 Office of the White House, “Address to a Joint Session of Congress and the American People,” September 20, 2001. http://georgewbush-whitehouse.archives.gov/news/ releases/2001/09/20010920-8.html. 63 Robert Kagan, “Obama The Interventionist, Washington Post, April 29, 2007. 28

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Michael D. Shear and Karen DeYoung, “On First Full Day, Obama Will Dive Into Foreign Policy,” Washington Post, January 20, 2009; A12. 65 So for example, three years into his presidency, in defending his decision to launch an attack against Libya President Obama compared his multilateral efforts to the past when, “there have been times when the United States acted unilaterally or did not have full international support, and as a consequence typically it was the United States military that ended up bearing the entire burden.” This was widely taken as a criticism of the Bush Administration’s decision to invade Iraq. In fact, the number of countries officially assisting the United States in Iraq (30) was larger the numbers assisting in the Libyan operation (16). See “Remarks by President Obama and President Sebastian Pinera of Chile at Join Press Conference, La Moneda Palace, Santiago, Chile, March 21, 2011. At http://www.whitehouse.gov/the-press-office/2011/03/21/remarks-president-obama-andpresident-sebastian-pinera-chile-join-press. The president made the comparison with Mr. Bush much more explicitly in his address to the national on his actions in Libya. See “Remarks by the President in Address to the Nation on Libya,” National Defense University, Washington, D.C., March 28, 2011. At: http://www.whitehouse.gov/photos-and-video/ video/2011/03/28/president-obama-s-speech-libya#transcript 66 Richard A. Oppel, Jr., “Strikes in Pakistan Underscore Obama’s Options,” New York Times, January 24, 2009. 67 Mark Mazzetti and David E. Sanger, “Obama Expands Missile Strikes Inside Pakistan,” New York Times, February 21, 2009. 68 Spencer S. Hsu, “Dismissal urged in suit on plan to kill abroad,” Washington Post, September 25, 2010; A5. 69 “I think it's important not to take this particular situation and then try to project some sort of Obama Doctrine that we're going to apply in a cookie-cutter fashion across the board. Each country in this region is different. Our principles remain the same.” See Transcript of Brian Williams’ interview with President Barack Obama, March 29, 2011. At: http://thepage.time.com/2011/03/29/obama-stresses-supporting-role/. 64

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 9

COMMENTARY: POLITICS AND POLICYMAKING IN THE GEORGE W. BUSH PRESIDENCY * Peter Wehner Deputy Assistant to the President and Director, White House Office of Strategic Initiatives, 2002-2007 Deputy Director of Speechwriting, 2001

I [initially] was hired as Deputy Director of Speech Writing [in the George W. Bush White House]. I was not involved in the 2000 campaign, although I had close friends that worked there and I gave free advice. During it, Mike Gerson, who was the chief speech writer for Governor Bush and then President Bush, was a very close friend of mine. We worked together for years. And when he became chief speech writer, he asked me to come on as his deputy, which I was happy to do. And so I was there 2001 and most of 2002. That was a very eventful time, as you can imagine. [After the 9/11 terrorist attacks, Deputy Chief of Staff Joshua Bolten] suggested that I become head of something called the Office of Strategic Initiatives. That office was new to the Bush White House and to the White House in general. The way it was described to me is I could make this office into what I wanted, which was a kind of in-house White House think tank, and that is where I served the majority of my time in the White House. My predecessor Barry Jackson is a very able person; the office was constructed very differently under him. He was involved in congressional negotiations; that was his skill, his specialty. It is not mine and it never has been. I never worked on Capitol Hill, and I didn’t feel like that was my skill set. What I did try to bring to the office was a series of ideas to think through, various initiatives we could do, how we could execute them. I was an aide without portfolio. To the degree I had influence in the White House it was derivative of my relationship with various people, so I was able to weigh in on communications, policy, and politics really because of my relationship with first Andy Card and then Josh Bolten who did, as I said, become Chief of Staff, Karen Hughes and then Dan Bartlett, who headed communications, Mike was speech writing, Karl Rove who was my *

Selected commentary from Plenary Forum, “Politics and Policymaking in the George W. Bush Presidency,” Conference on the George W. Bush Presidency, Hofstra University, March 25, 2015.

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superior, he’s the person that I answered to in the White House as well as John and Bridge [John Bridgeland]. So it was an ideal job for me in the sense that I was able to give ideas and there really wasn’t much line responsibility, and so I could weigh in on various issues. One of the things I did was to bring in historians and authors and public intellectuals to meet with the President. I think he enjoyed those times. They would last for about an hour, an hour and a half, sometimes even more. At times it would involve people who have written books on Lincoln, and other times it would deal with deeper cultural and moral issues that were going on. The President was a voracious reader. I think he read 11 or 12 books on Lincoln just during his presidency. So that was a great time, an intellectually challenging time. A number of the people we brought in had not voted for the President, but that didn’t matter, and those conversations were good and when I heard back from the people there that they enjoyed it very much as well. The last thing I will say to you about my job was I initially wrote off the record emails to a group of people including reporters, and this was my effort to explain policy, answer criticisms, help people understand what we were trying to do in the Bush administration. Eventually they became popular and they became on the record, and they were sent out eventually to about 1,100 or 1,200 people. The President referred to them as “Wehnergrams.” I had a great luxury, which is I was able to send these things out as a White House document without getting it cleared by people. One of the things I tried to do was get things out in a pretty timely way, and if you work in the White House often things aren’t timely because you have to get a lot of people to sign off. So I was given the latitude to do that, and that helped me to stay in conversation with a lot of people including people who were critics of the White House, people who were friendly to our administration, but thought we were making mistakes. So it was a fascinating job for me and it was one that I enjoyed very much. *** [For policymaking], there’s the element of, “Look, we have a goal that we want, how do we practically make it real?” John [DiIulio] can speak to this on faith-based [initiatives], Bridge [John Bridgeland] can do it on a whole array of issues. You’ve got an idea of what you want to do. And you may know all of the details of what you want to do. But you do have this branch of government called Congress. You do have, in the case of a Republican President, Democrats. You have to bring them on board, and there’s a lot of horse trading that goes on. There are certain people who want things, and they say “Look, I'll support you if you do x or y.” That is not always cynical. They just may have a different point of view. Or they may be representing the people of their constituents, which they’re elected in part to do. Then you just have to get down to the details. And you’ve got to have the capacity when you're in the White House and in politics to keep the vision in mind, so this policy doesn’t get pried apart into pieces and the sum is destroyed by what you do to the parts. But on the other hand you’re going to have people who are able to work with Congress and get into these types of details. You have to work with people and be open to making refinements. And this really goes to an issue of compromise in politics. I’m a conservative Republican, and it does bother me that there are an awful lot of conservatives these days who recoil at the term compromise and think that compromise per se is wrong. That’s a ludicrous proposition, particularly if you know anything about the

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Constitutional Convention and how it unfolded. I think the distinction I would draw is the willingness in principle to compromise versus compromising on principle, and those are two very different kinds of things. Our system requires compromise. That’s how it was set up. That’s how the founders wanted it. It can sometimes be an ugly process, and sometimes you give away too much in the process, but that's the way it is. The way the President operated was, he knew what he wanted to do, and he had a real mastery of the issues. It was a tremendous gap that I found when, for example, I brought authors and historians and public intellectuals in -- people who did not necessarily vote for him -- yet they would come out of those meetings and say, “Well, if that was the person that I saw in that meeting today was the person that I saw on television, I would have voted for him for President.” On the communication side of things we never, in my estimation, were able to convey the George W. Bush that we saw at private, the kind of person who both John [DiIulio] and Bridge [John Bridgeland] described. It was that kind of engagement and interest that I wish we could have conveyed to the wider world. He liked policy, he cared about it, and he often put policy in a moral context.

John J. DiIulio, Jr. Director, White House Office of Faith-Based and Community Initiatives, 2001 The work on public administration reform and the work on faith-based, as it became known, merged with the idea that there would be a way, there could be a way to effect publicprivate, religious-secular partnerships with the federal government, other levels of government, and with non-profit organizations including the smaller community-serving religious ones that traditionally had been left out of the federal grant process. Not always because of overt religious discrimination, sometimes just through outdated bureaucratic protocols and so forth. And so this idea kind of caught fire. . . . It was an overnight success after a half-decade of academic and journalistic and so forth discussions. And when it caught fire, [it sparked the interest of] both Vice President [Al] Gore, whom I had known somewhat from the Reinventing Government work, as well as George W. Bush, who in Texas, as Governor, had his own version, a major version of a faith-based initiative that had grown up and around this idea of what became known as compassionate conservatism, and the idea that government can’t be replaced by charities, religious or other, but it should work with them in order to provide services to the needy and neglected where possible. So I was working with actually the Gore folks when I got a call to go to, in the spring of ‘99, to go down to Austin and to meet with Governor Bush, not as a campaign thing. He was very intellectually interested and curious, and he would bring in people to give him advice or ideas, and so I was asked to go to one of those and, with characteristic lack of grace, I said no. I was already working with the Gore folks, I wasn’t so sure. . . . But they were kind and persistent, and then Professor [James Q.] Wilson called me and said, “You will go to Austin.” [laughter] And so I went and it was remarkable. . . . I had worked with other Presidential aspirants, both Democrat and Republican, a little bit in the past. But it was striking to me because he

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[Governor Bush] sat at the table and he asked what I thought were all the right questions and people, I think, in those settings like to perform. They come in and they’re trying to pitch an idea or they want to be. . . . And he clearly was sensitive to that, but he also was highly discerning about it and he was capable of sort of asking questions on the spot and getting, I thought, fairly reasonable answers. And the question he asked me is, “What’s the one thing you would do . . .” if I was President of the United States. “If you could tell me one thing you would do, what would it be?” And I said, “Mentoring the children of prisoners. A faith-based initiative to increase support for children who have a mother or father incarcerated.” And he kind of just seized on that, right? And so this is, again, this is spring of '99, so we leave that meeting and I figure I probably will not hear from these folks again, even though I have a lot of good friends who were around them. ‘Cause usually I’m invited places twice, the first time to speak and the second time to apologize for what I said the first time. [laughter] But then, as they were working on the Duty of Hope speech, which was his sort of maiden campaign speech on July 22, 1999, I had an opportunity to weigh in. Not a lot, I by no means wrote the speech, I was just one of many people who had a chance to give input. And what was striking to me about that was the openness on the part of this extensively conservative, Republican presidential candidate to talk about the armies of compassion. Not only as wanting to unleash them and so forth, but that they were out-manned and out-flanked and out-gunned, that they needed support. That you could not make bricks without straw. That you needed ministry, but you also needed Medicaid expansion, and that was a new perspective and a very welcome one to an old Democrat like me. So I worked on that a bit and on the morning of that speech, I got a call out of the blue from Governor Bush and it was the most -- it was one of the just kindest -- he gave me way more credit than was due and Steven Goldsmith, who had been the Mayor of Indianapolis, was, at that point, a major figure with the campaign as a domestic policy adviser, and Mayor Goldsmith was with him, and we had this nice chat and that, I thought, was pretty much that. The Gore people did much the same, so somewhere in my files are campaign documents from 2000 from both campaigns. I was receiving things and being asked for independent commentary on a whole range of domestic policy issues. And that went on from July, August of '99 all the way about five or six months and then, I kind of said, “Well my fax machine . . .” Remember fax machines? “My fax machine is burning up, I can’t do it anymore. I’ve got other things to do, I can’t do it. Sorry." And so I kind of stopped doing it. But then in June of 2000, I received a call from Karen Hughes saying that Governor Bush is coming to Philadelphia, he was working on his speech on government reform, something I actually knew something about, and, “Could you take a look at the speech,” and, “He’d actually like to see you or meet with you while he is there.” I said, “Sure. Coming to Philadelphia? If anybody comes to Philadelphia, I’ll meet with you,” and it was delightful. So we went to the speech, which was given at the Historic Carpenters’ Hall, and then after his speech was done, he asked me to hang back. We went to a downtown Philadelphia hotel and, I think this was what made me a believer. We had about 45 minutes just one-on-one before then-Pennsylvania Governor [Tom] Ridge arrived, before Mayor Goldsmith arrived. So, remember, spring of ‘99, what’s the one thing you would do? I had mentioned the children of prisoners. Cut the camera to June of 2000, first thing.

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“So let’s pick up on that children of prisoners.” He had done, obviously, a lot of thinking, research. What would be the main problems with it? What would be -- not the politics of it, but what would be the main kind of problems in getting to the point where you can get 100,000 or 200,000 active matches with children of prisoners, how would that be done? Would existing organizations like Prison Fellowship Ministry be useful in that? What about the sort of more secular, non-profit world? Might they be able to partner in it? It was like I was talking to a research intermediary chief. *** So we had that conversation. Then we had lunch with Governor Ridge, and I really thought then that was because I was invited to attend the Republican National Convention, which happened to be in Philly that summer. In deference to the memory of my FDR [Franklin D. Roosevelt]-loving Democrat grandparents who would be spinning in their grave, I did not go. But I continued to remain engaged and it was when I went in in the context of a transition team. . . . That’s when I met John Bridgeland to talk about the staffing of what might become the White -- it wasn't named yet, but the White House Office of Faith-Based ombudsman, or the faith-based, or whatever it might be. And the interesting fact there was that there were a lot of people who supported the idea, but thought that the office needed 15 or 20 staff, which would make it like the size of OMB [Office of Management and Budget], right? White House offices are very, very tiny and small. Not just in the George W. Bush administration, but, of course, in all administrations, much smaller than people realize. When I was asked to join the administration, I agreed, and I was going to serve six months and then go back to my beloved Philadelphia, where I belonged. I ended up serving eight months or so. My last official day in the White House was September 15, but my last day inside was to be September 11, when I was waiting for the President to come back from Florida to have my good-bye photo, which, of course, never happened.

John Bridgeland Assistant to the President and Director, USA Freedom Corps, 2002-2004 Director, White House Domestic Policy Council, 2001-2002 I first met then-Governor George W. Bush on July 22, 1999. It was the day he gave his Duty of Hope Speech in Indianapolis. It was his first major presidential campaign announcement, which I had the pleasure of organizing in Cincinnati, Ohio, where I moderated an event at a faith-based center that had previously been a crack house in Cincinnati. I went to pick up Governor Bush at the airport and started briefing him on this event that we were about to do together, and he started firing questions at me. He said, “Does this faith-based . . . does this coalition receive federal funding?” I said, “Yes, it does, Governor.” He said, “Does it discriminate in any way against beneficiaries?” I said, “No, it does not Governor.” “But does it . . . do these organizations maintain their religious integrity?” I said, “Yes, they do, Governor, but they can’t proselytize or engage in sectarian worship.” He said, “Good.” And then he said, “Are there secular

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Peter Wehner, John J. DiIulio, Jr. and John Bridgeland alternatives for drug abuse prevention and treatment?” I said, “Yes, there are, Governor.” He said, “I’m excited about this event.” So off we went. It was 115 degrees in this faith-based center. At the end of the event, which went well at a policy level, we were dripping with sweat, and I never thought I would see Governor Bush again. And as faith would have it, I ended up going down and visiting with the campaign team. . . . [President Bush] had such energy for domestic policy, so it was a privilege to serve . . . as his Director of the White House Domestic Policy Council. ...

I had the privilege of briefing President Bush twice a week in the Oval Office, and the first time you go in and you brief the President in the Oval Office, you feel like a complete imposter. It’s a surreal experience, but it becomes your daily and weekly job. And you don’t brief the President when you want to, you brief the President when you absolutely need to. If there are conflicts within the Cabinet, departments and agencies, in terms of views that cannot be resolved by the policy councils, you surface it up to have the President make the decision. What struck me about President Bush that I think actually is a pretty powerful legacy is that every time you go to brief the President, he would ask the following four questions, effectively: One, what’s the evidence for this program? Will it actually achieve the results as advertised? I’m going to get back to that in a minute. Second, what’s the goal of this program and the strategy to meet it? Third, he’d say, “who’s in charge of this program, who’s managing it?” And I’d say, “well, the assistant secretary for this particular division with . . .” “No, no, no, no, no, Bridge, what’s the name of the person who is actually running this program?” So I always had to come in knowing who was actually in government running the program. And finally, “how are we going to be accountable for results to taxpayers and the American people?” And interestingly, he put in place the performance assessment rating tool to measure more than 1,000 programs, and I had a little look-see into this world when I was asked to cochair the White House task force for disadvantaged youth. Because, as John and Pete said, he had this robust, compassionate agenda and we were looking, how could we help the 15 million young people in the United States at risk of not reaching productive adulthood? We would later learn that there are 6.7 million young people in the country who are disconnected from school and work. And it’s a moral and social obligation to connect them, but even if you don’t believe that, they cost taxpayers $93 billion a year if we don’t reconnect them, in lost productivity and increased social services. When I did this review of the White House task force for disadvantaged youth, we discovered 339 federal programs across 12 departments and agencies spending $224 billion every year to help this population. You could literally give a voucher to every vulnerable youth and family at that cost. So he brought a spirit of “what’s the evidence base?” So whenever we went in to brief the President, the foremost issue in our minds was “what’s actually known about the effectiveness of this program and what can we do to build a better understanding?” Whether it was TANF [Temporary Assistance to Needy Families] or SNAP [Supplemental Nutrition Assistance Program] or Head Start, we were looking at programs to improve performance.

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In my view, one of the greatest legacies he boldly put in place was something called the President’s Malaria Initiative. [PMI] More than one million, mostly women and children, were needlessly dying in Africa every year from a fully preventable and treatable disease. And driven by evidence and Nobel Laureate economists who were telling us it was the best return on the planet, he did a President’s Malaria Initiative that initially targeted 15 countries, expanded, unleashed support through the Global Fund, the World Bank, eventually organizations like Malaria No More. And then the creation of a UN special envoy for malaria. Since 2005 when PMI was launched, more than four million lives have been saved in Africa from malaria, and. . . . [It is] pretty close to being on pace by the end of this year to something close to 100,000 deaths a year, down from 1.2 million. And that was, the reason I give you that example is, that’s the kind of example the President really liked. What concretely are we doing, how are we going to do it, what’s the goal, and how are we going to keep ourselves accountable for results?

FAITH-BASED INITIATIVES IN THE GEORGE W. BUSH PRESIDENCY† John J. DiIulio, Jr. Director, White House Office of Faith-Based and Community Initiatives, 2001 What became H.R. 7 [the bill to incorporate charitable choice into federal social-service programs] was first going to be H.R. 1 or H.R. 2, it was really the very first thing out of the box. And part of the reason it wasn’t H.R. 1 or H.R. 2 is because it wasn’t entirely clear that there was a uniform consensus on exactly what should be in that bill. There were multiple and competing groups and ideas within the Congressional Republican Group on Capitol Hill and in the House, there were some disagreements and emphasis on accent within the White House, and the bill that eventually gets reported up and out is H.R. 7 and eventually passes -15 Democrats voted for it at the end of the day. By today’s standard that would be a bipartisan bill. Then, it was considered a virtual party line but for today that would be like a remarkable bipartisan achievement. But, as it was going through the process, the main objection to the original language of H.R. 7 which had already been made public, came from the House Judiciary Committee. It came from Representative [James] Sensenbrenner on the Judiciary Committee who basically called the White House more or less to account, because of certain provisions in the bill that he interpreted as having essentially done a version of what that executive order eventually did, which is to sort of expand the range of conditions under which religious non-profit organizations could receive funds and yet use those funds in hiring only their own core religionists, so he objected to that and other aspects of the bill. At one point, I went to Capitol Hill with John Bridgeland, and we met with a range of people on both the Democrat and the Republican side, I think this was in June of 2001, so just about a month before the vote on the bill, thereabouts. And Mr. Bridgeland, made a statement that was picked up in the press that the bill, yes, the White House agreed that the bill needed to “be brought back into line with the Constitution.” Which was an interesting day for him in †

Selected commentary from Forum, “Faith and the George W. Bush Presidency,” Conference on the George W. Bush Presidency, Hofstra University, March 25, 2015.

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the White House. Usually it was me having interesting days, but he had a very interesting day that day in the White House. But the point was that we were reflecting what the requirements were from Representative Sensenbrenner, but also the Senate which although obviously it was yet to be heard from and eventually would, as largely frankly expected, not act on that version of the bill. People like the then-Republican Senator of my state, Pennsylvania, Arlen Specter, who had a very kind of strict-constructionist view on church-state separation, let it be known that not only would he not support such a bill were it to come to the Senate, but that he would actively oppose it. So, there were modifications made to H.R. 7. So the H.R. 7 language, if you go back and look. . . . It’s fascinating, the debate on the [House] floor, they are actually in many points debating the previous version of the bill. So, they’re fighting over and defending and opposing language which has been stripped from the bill. So, that bill passes and it is obvious that it’s not going to be a cakewalk or any such thing in the Senate. *** On September 11 2001, as I was waiting for the President to come back from Florida (my last official day was September 15, and my last actual in-house day was September 11), I was waiting for a two o’clock photo opp. And I had in my breast pocket the draft of a bill, not an official draft but something that Senator [Hillary] Clinton and Senator [Rick] Santorum had worked out in July of 2001. They each came to the White House, there were back-and-forth negotiations. So, had 9/11 not happened, in addition to a whole host of other things where the world would’ve been different. . . . There probably would have been an initiative that would have come from the Senate on a genuinely bipartisan basis. The bill was not radically different in all respects from H.R. 7, but it was different enough that it could actually satisfy concerns of people like Senator Specter on the Republican side, and then, actually, Senator [Edward M.] Kennedy, was not opposed to that version of the bill. So, it’s this objective, conditional, might-have-been version of the counter-factual history. And then finally, with respect to the point about the President speaking about the initiative, not claiming credit for the initiative, what he’d already done with the executive orders and the changes in funding, and the implementation of the level playing field report that came out in August of 2001. You’re absolutely correct. That there’s a dramatic fall off, and then you get the December of 2002 executive order and so forth. But, one aspect of this again is that there’s a dramatic increase over that period of time in the extent to which members of the White House Office of Faith-Based and Community Initiatives, and the people in the centers are going out doing everything from coffee sessions to major gatherings of hundreds, and in some cases close to a thousand, people, on the part of my successor [as Director of the Office of Faith-Based and Community Initiatives] Jim Towey, the directors of the five centers for Faith-Based Initiatives in the Cabinet agencies, they go out and basically, it’s not the President to be sure, but there’s a dramatic increase in that. And that really is sustained all the way up through the 2004 elections.

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Peter Wehner Deputy Assistant to the President and Director, White House Office of Strategic Initiatives, 2002-2007 Deputy Director of Speechwriting, 2001 I’m going to reflect a little bit, offer some thoughts on the Faith-Based Initiative itself, and then pull back the lens a little bit more and give some very brief reflections on my interpretation of the role faith played generally, as I understood it, as I interpreted it, for President Bush and for his presidency. The role of religion in public life in American history is a complicated and variegated thing, and it manifests itself in different ways. And I think that the spirit behind the FaithBased Initiative was much more toward those on the margins of society, which was not the kind of thing that faith in public life was characterized by from really the early and mid-1970s up until really the last few years, when the religious right has essentially collapsed. We’re now in a transition moment and we'll see what arises from it. . . . What happened was that the religious conservatives became the tip of the spear in what became known as the “culture wars,” and that lasted for a long period of time. And so that was the dominant characteristic. The Faith-Based Initiative tapped into a very different spirit, which I think explains some of the problems we had. The Faith-Based Initiative is an initiative of George W. Bush, but it was based really on, I think in large part, the faith of George W. Bush. As we just recounted, there was for him the very personal side of it. This was something that had transformed his life in a lot of ways. Giving up drinking was one of the key moments. It’s one of the issues he deals with in his book Decision Points, one of the pivots in his life. And so, because that was important to him and he saw the power in his own life, I think that he extrapolated out of that to see the power in other lives. But it wasn’t just the power of his own life, I think it was the power that it had in the lives of other people. So this was something that was very real to him when he was governor of Texas, and if you spoke to him at that time, people who were with him, he saw the kind of transforming effect that these faith-based institutions in Texas had and he wanted to expand that when he became President. So, to understand the Faith-Based Initiative, I do think it’s important to understand the role of faith in George W. Bush’s life. The second thing I’d say is, and anybody can correct me if they think I’m wrong on this, I don’t think that there was any other initiative that I can think of that there was a larger gap between what the President wanted to do and what most of the White House staff and the rest of the administration wanted to do. This was something he cared very much about; it galvanized him. John [DiIulio] has made reference to the President saying, “Why, don’t you get on my dance card more? I want to see you more. Why aren't we doing more of this?” It’s like the captain of a ship turning the steering wheel and the ship keeps going in the same direction, and he keeps turning the wheel and it never turns, and then you go down and you see that someone’s cut the cords between the steering wheel and the rudder. And so I had a sense that this was something that just didn’t have the kind of energy. There were some people, admirable people, who cared about this, but we just didn’t have the kind of support system that we would have had and that we had on other issues. That’s just my observation. The third point I’d say is that, we ran into something of a buzz saw on Capitol Hill, precisely, I think, because of what I described in terms of the religious right and the more

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cultural war aspects of it. This was just not an issue that a lot of Republicans cared very much about. John [DiIulio] knew this firsthand, but my sense of it, my more limited experience and my observations on it, was: The Capitol Hill Republicans would return phone calls on it and you could have meetings on it, but there was a check-the-box quality to it. This is not something that animated them, that they were passionate about. So that was one problem I think there wasn’t a base of support within the Republican party, or the conservative movement for it. On the liberal side, there was suspicions of it, partly because it was President Bush and because he was a Republican and they were Democrats, and this was the kind of thing that if it had come from a Democratic President, they probably would’ve been all on board. It just didn’t work, and one shouldn’t underestimate nor overestimate the effect of the Florida recount, which poisoned the waters. I t had nothing to do with what George W. Bush or Al Gore did, it’s just the way it happened. And a lot of the partisans and a lot of the members of both parties really got their back up. It was a very intense period, we kind of forget it now, but this was not an auspicious way to begin a Presidency, and I think there was some spillover effect. So there was skepticism within the Democrat Party, but as John said, even with Republicans like Arlen Specter, there was a sort of suspicion of faith and the role of government. I think there's reason to have some suspicion about that, if you look through American history, but I think there was a predilection, a disposition to be overly fearful of that on the Democratic side. So I don’t think that you had, as this initiative went forward, the kind of support on Capitol Hill or within the two parties that I would have liked to have seen. And then you did have this thing called the “War on Terror” intervene. I was there on 9/11, and everything was knocked in a cocked hat after that. Things that we had planned were pushed off the table. We were actually on the morning of 9/11, when I called my colleague Mike Gerson, the President’s Chief Speech Writer, he was at home when the Twin Towers were hit, and he was at home working on a Communities of Character speech, which was one of the initiatives that we were trying to get ready for the fall. All of that stuff got knocked out and there was a hyper-focus on the “War on Terror,” in ways that you can’t even imagine. That surely had some kind of an influence on this. As John said, he had the legislation in his coat pocket that could’ve moved this thing, but [the 9/11 terrorist attacks] interceded. In my experience, faith has a different effect on people, depending on what your own personality and temperament and predilections are. . . . I think Christian faith . . . sanded off some of his [George W. Bush’s] rougher edges, I think it made him a more tender person. He’s a person who is, temperamentally, he can be quick and sharp and a person in a hurry, direct. He’s a wonderful guy, he’s got a witty tongue, but I think faith softened those aspects of him and made him a better and more decent person. The other thing -- I don't think he would use these terms but I’ll use them – is I think it affected his view of human anthropology, of the nature and dignity of the human person. He never, in my view, made simplistic calculations, saying, “Well, the Scripture or the Bible says ‘X,’ and I’m going to connect the dots, and therefore, if you’re a faithful Christian, you’re going to support cutting the capital gains tax rate” or any of a number of other things. He never got into that kind of simplistic game. But I do think it affected his view of certain issues. And I do think that on certain issues, of which the Faith-Based Initiative is one, immigration is another. I think the Global AIDS Initiative, PEPFAR, the Malaria Initiative; I think his faith helped shape those as well.

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So my experience was that his Christian faith animated him and it did manifest itself but in, I think, much more complicated ways than some people suggest. And the final point is, the Faith-Based Initiative was the first of its kind and these things – it’s still in place, it’s still going on, it doesn’t really get as much attention in the Obama Presidency as the Bush Presidency, but it’s going to be there for the next President. That individual may give it more attention than it’s getting now. I can’t imagine that they're going to undo it. And it’s always a mistake to assume that the first time that these things are done, that’s the end product. History unfolds and these efforts go on and they transform in many ways. . . . I think it was conceived in good intentions, I think it achieved good things, and my hope is that as time unfolds, more good will come from it.

PART III: POLICYMAKING IN THE GEORGE W. BUSH PRESIDENCY

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 10

‘WE MUST WORK EVERY DAY TO IMPROVE’: THE CREATION AND EVOLUTION OF A HOMELAND SECURITY INFRASTRUCTURE IN THE GEORGE W. BUSH WHITE HOUSE* David B. Cohen1, Dane S. Egli2 and Terrence M. O’Sullivan1 1

The University of Akron, Akron, Ohio, US Johns Hopkins University Applied Physics Laboratory, Laurel, MD, US

ABSTRACT If crisis is a catalyst for change, then the years following the 9-11 terrorist attacks and traumatic landfall of Hurricane Katrina in 2005 were ripe for significant change within the U.S. government and labrynth of supporting organizations known as the interagency. Against the backdrop of these historic events, the George W. Bush Administration grappled with selection of the right people to lead their response, formulation of appropriate public policy, and how to best organize and legislate for a new era where national security and homeland security were under renewed examination. This paper pulls the curtain back on the dynamics of the national security debate that took place at this time between Capitol Hill and the Administration, efficacy of the Homeland Security Council, and precursor activities that lead to the Homeland Security Act of 2002 and establishment of the Department of Homeland Security. Drawing upon seminal documents such as the National Security Act of 1947, executive orders, and interviews of interagency leaders who served on the National Security Council, and Homeland Security Council, as well as alongside Governor Ridge--first Secretary of Homeland Security--the authors trace the defining steps that shaped the current homeland security structure. Further, this paper highlights the unique challenges of forming a new federal department and forging consensus within the interagency to define its role; especially when it involves a crisis-driven demand for action and consequential leadership. *

An earlier version of this chapter was published as David B. Cohen and Terrence M. O’Sullivan, “Stuck in the Basement: Organizing and Reorganizing for Homeland Security in the Post-9/11 White House,” White House Studies 12, no. 1 (2012), 89-110.

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David B. Cohen, Dane S. Egli and Terrence M. O’Sullivan “Despite all we do…Hurricane Katrina was a deadly reminder that we can and must do better, and we will. This is the first and foremost lesson we learned from the death and devastation caused by our country’s most destructive natural disaster: No matter how prepared we think we are, we must work every day to improve.”1 —Homeland Security Adviser Fran Townsend, in a letter submitting a report on Hurricane Katrina to President George W. Bush, February 23, 2006.

INTRODUCTION In the immediate aftermath of the 9/11 terrorist attacks, the Administration of President George W. Bush faced the simultaneous challenges of how to respond to perceived ongoing, immediate threats from al Qaeda while also assessing what went wrong, and deliberating on the establishment of new, longer-term policy mechanisms to prevent future such terrorism threats on American soil. As the entire nation wondered whether more attacks would occur, this high-pressure context was perhaps like no other for the United States government since the Japanese attacked Pearl Harbor on December 7, 1941. More than one principal Bush Administration participant interviewed for this paper used the analogy of going from “zero to sixty” miles per hour, while soon thereafter moving toward what would become the biggest governmental reorganization since World War II. The initial internal White House post-9/11 organizational response debate centered around whether the existing National Security Council (NSC) structure would be adequate to handle the new terrorism crisis. Alternatively, some questioned whether a new structure, more oriented toward domestic security (versus the NSC’s more traditional international, national defense focus), should be established.2 President Bush and some of his advisors were reluctant at first to establish a new Cabinet-level department (an idea far more popular in Congress at first). One nearly immediate answer was the issuance of an executive order creating the Office of Homeland Security (OHS), a cabinet-level agency housed in the Executive Office of the President, and the Homeland Security Council (HSC), a cabinet-level advisory position modeled after the National Security Council. OHS was tasked with coordinating the myriad of federal, state, and local agencies in order to provide better intelligence to thwart future attacks and to improve response in the event that another attack occurred. For various reasons, the consideration for massive change in the executive branch homeland security bureaucratic structure changed by the summer after the attack, particularly after Congress had already begun aggressively pursuing the idea of a new terrorism-related “homeland security” department. The White House coalesced around establishing both an independent NSC-like Homeland Security Council and staff, as well as the Department of Homeland Security (DHS). On March 1, 2003, nearly eighteen months following the 9/11 attacks, OHS was replaced by the Department of Homeland Security, a new organization that merged more than 22 existing federal agencies and 200,000 plus personnel, and became the third largest cabinet department. Despite the existence of DHS, the Homeland Security Council continues to operate within the confines of the White House and is headed by the Assistant to the President

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for Homeland Security and Counterterrorism (often referred to more simply as the “homeland security adviser”). Almost to a person, former officials emphasize the initial importance of leadership and previous relationships of trust—particularly in the early days—in making things happen in ways and at speeds at which the traditional White House structures were not accustomed to operating.3 Also apparent were the evolving leadership and structural needs—as a smaller, tighter crisis-driven team eventually gave way over the months and years to a changing political and organizational environment, and growing apparatus and portfolio, both inside and outside the White House. Among other critical turning points, the need for rethinking the singular “homeland security” terrorism focus became very evident after 2005, when Hurricane Katrina compelled a mission reorientation. Following Katrina and into the Obama Administration, there have been further reassessments of the mission profile of DHS, the HSC, and the broader homeland security apparatus as other complex and important issues have come to the fore. Nonetheless, even as policy concerns such as climate change and pandemics emerge as growing domestic and international security threat multipliers,4 the central mission of the “homeland security” institutions and infrastructure remains, still, primarily about terrorism risk. In more than a decade since the 2002 Homeland Security Act, tremendous efforts and resources have been and continue to be expended, and there has been a great deal of analysis of what may and may not have worked, and why—particularly in the birth and functioning of the Department of Homeland Security. Yet there has not been extensive investigation of the particular role of the White House Homeland Security Council and staff, and its relationship with the NSC (and staff), in guiding the creation of the current homeland security mission and structure. We investigate the historic dynamics of what happened and why during those early years, up to and including the 2009 Obama Administration decision to reorganize and integrate the HSC staff into the NSC. This involves analysis of the important time-specific, evolving structures, leadership, ideas, and relationships that emerged, and how they contributed to the outcomes, using interviews with some of the principal players involved during the two terms of the Bush 43 Administration.5 Among other conclusions discussed below, it is evident that a White House-centric model, based on a small number of key experienced “insider” relationships and access to the Oval Office, was critical in the early “crisis” months and immediate years after 9/11. This appears to have been true even after a new and different crisis emerged with Hurricane Katrina and the rest of the record-breaking 2005 storm season. But as time passed, this transitioned into a more stable – albeit with growing pains, in many ways -- structure in which DHS took more and more central responsibility for institutional leadership, and the HSC and its staff less. We contend that there is still a functionality and prioritization challenge regarding the comparative weight given terrorism threats versus natural (non-manmade) disaster threats (such as pandemics, geological events, and extreme weather), or even accidents such as the BP Deepwater Horizon oil spill in the Gulf of Mexico. This concern is also reflected among some of the former officials interviewed for this paper. We explore and analyze the establishment and functioning of the Office of Homeland Security and Homeland Security Council, and the structure, functioning, and personnel of both organizations, including the position of Homeland Security Advisor. We outline the historical evolution of the homeland

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security apparatus in the Bush White House and the impact of threats (such as the asymmetric threat of terrorism, natural disasters, etc.), actual events (e.g., 9/11, anthrax mail attacks, Hurricane Katrina) and personnel (e.g., the various Homeland Security Advisors) on the structure and process. Data was drawn partly from personal interviews with former Bush White House staff members and Administration personnel directly or indirectly involved in homeland security and national security matters. Other data are derived from various presidential documents such as executive orders, Homeland Security Presidential Directives issued during the Bush administration, speeches and public remarks, as well as primary documents such as Congressional hearings and reports, and public laws. The authors hope the paper will inform formulation of the history and critical analysis of what contributes to the success or failures of such crisis leadership and national-level organization.

THE ORIGINS AND DEVELOPMENT OF HOMELAND SECURITY Despite dramatic claims to the contrary after 9/11, not “everything” changed then. There had already been a history of significant U.S. federal concerns about, and response, to terrorism that preceded the 9/11 attacks. Weapons of mass destruction played a partial role in this growing concern during the later George H.W. Bush years and throughout the Clinton Administration. Included in this was the discovery of the former Soviet Union’s massive and sophisticated biological weapons programs—uncovered by Western scientists and diplomats visiting the former Soviet Union, and confirmed by Russian President Boris Yeltsin in 1992.6 Around the same time, after the 1991 Persian Gulf War (“Operation Desert Storm”), the extent of Saddam Hussein’s biological and chemical weapons program, largely undetected until discovery by United Nations weapons inspectors, became apparent. Not long after, one of the first major modern terrorist attacks on U.S. soil occurred with the 1993 World Trade Centers (or “WTC I”) bombing in New York, an event which killed six people and injured thousands more. 1995 was a particularly tragic and pivotal year for terrorism concerns due to the Aum Shinrikyo cult’s sarin nerve gas attack on the subway system in Tokyo, Japan, on March 20, and the April 19 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, by Timothy McVeigh and other accomplices, the largest domestic terrorist attack in U.S. history at the time. In June 1995, President Bill Clinton declared in Presidential Decision Directive 39 (PDD-39) that there was “no higher priority” than preventing WMD from falling into terrorist hands.7 As an added reminder of the threats facing the United States, the June 25, 1996, bombing of the Khobar Towers, a U.S. Air Force housing complex in Khobar, Saudi Arabia, resulted in the deaths of 19 American service personnel and the redeployment of U.S. forces. As a direct result of the Oklahoma City Bombing, the Clinton Administration pushed through Congress the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)—in many regards the “other” major antiterrorism legislation that preceded the more famous USA PATRIOT Act of 2001. Despite the fact that the Oklahoma City attack was perpetrated by a conspiracy led by Timothy McVeigh, an American citizen, the AEDPA primarily focused on immigration, curtailing the legal rights of foreign nationals in the U.S., and gave federal agencies further latitude in restricting habeas corpus appeals in capital cases.8

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It is also during this decade that Clinton Administration officials, particularly in the Pentagon, and other policymakers, began using the terms “homeland defense” and “homeland security” to refer, respectively, to variations on securing U.S. territory from external and internal (particularly terrorism) threats.9 The DoD’s 1997 Quadrennial Defense Review (QDR) made prominent mention of “homeland defense” in the context of terrorism attacks and threats that had occurred in the preceding few years.10 The 1990s also witnessed the heyday of the Federal Emergency Management Agency (FEMA), under the leadership of Director James Lee Witt, a professional emergency manager who enjoyed cabinet-level status for the entire eight years of the Clinton Administration.11 In February 2001, the Hart-Rudman Commission, which had already been investigating for nearly three years U.S. domestic and national security priorities, asserted in its final, “Phase III” report a need for significant changes in U.S. homeland security, including the establishment of a new “National Homeland Security Agency.”12 The Commission attempted to prioritize U.S. security interests, into three main categories, ranging from “survival” to “critical” to “significant.”13 At the time, the Hart-Rudman Commission’s intent was far more modest than what was to become the current Department of Homeland Security. In its final report, the Hart-Rudman Commission proposed integration of FEMA, the Customs Service, the U.S. Border Patrol, and Coast Guard—a configuration far leaner than the current DHS.

HOMELAND SECURITY IN THE IMMEDIATE AFTERMATH OF 9/11 Three Phases of Homeland Security Structuring There have been three significant reorganizations of the American federal domestic security structure following the 9/11 terrorist attacks. The initial stage was the creation of the White House Office of Homeland Security (OHS), homeland security adviser, and White House Homeland Security Council, and HSC staff support structure, in the immediate aftermath of the 9/11 attacks. A year later, the executive branch and White House apparatus was revamped including the creation of the Department of Homeland Security. The most recent restructuring of the White House security apparatus followed an inter-agency group report submitted to President Barack Obama soon after his inauguration, which recommended that the HSC staff be absorbed into and subordinated to the NSC. DHS was left relatively intact after the 2009 reorganization aside from the usual adjustments that occur as a new Administration takes over. We describe these bureaucratic metamorphoses, and analyze the related functional implications for domestic homeland and international security. A centralized organization— be it the original DHS or the NSC takeover of the HSC functions—can be more efficient, avoiding overlap and bureaucratic stove-piping; however, much of homeland security is both civilian and natural disaster-oriented, and even the terrorism portion of the risk still often falls under non-traditional security.

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The Trigger: 9/11 and a Revamped Executive Branch Bureaucracy The history of U.S. and international terrorism reflects a growing number of incidents from the 1960s onward, ranging from minor to substantial, and particularly in the decade before 9/11—all of them telegraphing the possibility of future catastrophic attacks. Since the devastation and loss of life of previous terrorist incidents were comparatively smaller, the demand for organizational change was also correspondingly smaller. The Oklahoma City bombing, for instance, had a far smaller psychological impact on the nation, and little economic impact beyond the immediate area because it did not disrupt a critical, vulnerable sector like the airline industry. In the terminology of Baumgartner and Jones, the 9/11 attacks represented a classic crisis “triggering event.”14 At no moment in modern American history (with the exception of Abraham Lincoln during the Civil War and Franklin Roosevelt during the Great Depression/WWII) has a presidential Administration had such an opportunity to reshape the structure and organization of the federal government. Public opinion provided clear support for the anti-terrorism policies and the George W. Bush White House embraced the idea of wholesale change at the federal level.15 Typical of the mindset of sweeping change, National Security Adviser Condoleezza Rice observed that “[w]e commonly hear the refrain that everything changed on September 11th. In many ways, that is true. And one of the things that has changed is how we are going to organize the United States government to defend against, and ultimately defeat, the threat of terrorism.”16 Recommendations for creation of a new homeland security agency or department came from Congressional Democrats and were resisted initially by the Bush Administration. However, the status quo was unsustainable as accusations about unheeded warnings and intelligence failures leaked in the immediate days following 9/11, and the Bush Administration quickly pivoted and embraced a homeland security reorganization. In a televised address to a special joint session of Congress on September 20, 2001, President Bush announced the creation of the Office of Homeland Security: Our nation has been put on notice: we are not immune from attack. We will take defensive measures against terrorism to protect Americans. Today, dozens of federal departments and agencies, as well as state and local governments, have responsibilities affecting homeland security. These efforts must be coordinated at the highest level. So tonight I announce the creation of a Cabinet-level position reporting directly to me—the Office of Homeland Security.17

Executive Order 13228: Office of Homeland Security and Homeland Security Adviser On October 8, 2001, President Bush signed Executive Order 13228 creating the Office of Homeland Security, a cabinet level agency housed in the Executive Office of the President (EOP).18 OHS was tasked with coordinating the myriad of federal, state, and local agencies in order to provide better intelligence to thwart future attacks and improve response in the aftermath of another terrorist attack. According to E.O. 13228, the mission of OHS was “to develop and coordinate the implementation of a comprehensive national strategy to secure the

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United States from terrorist threats or attacks.” Among other things, the functions of the OHS were to “coordinate the executive branch’s efforts to detect, prepare, protect against, respond to, and recover from terrorist attacks within the United States.” E.O. 13228 also stipulated that OHS be led by the Assistant to the President for Homeland Security. OHS and its director were modeled after the modern iteration of the National Security Council staff and the Assistant to the President for National Security Affairs (better known as the national security adviser). The NSC is a White House coordinating agency whose director is located in the West Wing. However, a major difference between the two institutions was that the OHS was created by executive order and the NSC was a statutory creation born out of the National Security Act of 1947.19 Thus, President Bush had a freer hand to create, adapt, and change the OHS than was the case with the NSC.20 Also, because the OHS was a presidential creation housed within the Executive Office of the President, the director was not subject to Senate confirmation nor required to testify before Congress when called. This, in fact, was a major source of friction between the Bush White House and the 107th Congress when the OHS Director refused numerous requests to testify before Congress on the topic of homeland security in a formal setting.21 Only after the Bush Administration announced its plans to create DHS did the Director agree to appear in formal hearings before Congress.22 Tom Ridge, the Republican Governor of Pennsylvania, was selected to lead the OHS. He was chosen not only because of his impressive resume, but because of his close personal relations with Bush. Having the confidence of, and access to, the President is a key ingredient for any presidential adviser looking to influence policy and by many accounts Ridge had both.23 One former Administration official corroborates this when he observed that the creation of the OHS and related White House efforts: was such a major muscle movement to try to coordinate and coalesce all of... the functions, not to mention all the other functions that eventually were glued together….You needed White House involvement and you needed somebody who was close to the President or at least had the president’s ear to be able to make those major muscle movements, or this would not have succeeded.

The creation of OHS was met with much public skepticism, particularly from members of Congress who felt that the position of homeland security adviser lacked sufficient power and authority—especially budgetary authority—to accomplish the stated mission of the office and to overcome the bureaucratic turf battles that would ensue.24 The new office was tasked with coordinating homeland security operations with over 40 federal agencies whose jurisdictions at least partially intersected with homeland defense. Exacerbating the challenge for OHS was the fact that homeland security is truly an intergovernmental cross-agency problem. States, and particularly local government agencies, provide community-level first responders and are heavily involved in crisis and consequence management. Thus, coordination of the homeland security activities in the U.S. is a major task viewed by many lawmakers and planners as a practical impossibility for a small White House staff with no budgetary authority. News reports regarding the creation of the OHS expressed concerns over a perceived lack of authority for the new OHS director.25 For example, Sydney Freedberg of the National Journal reported that “[m]any members [of Congress] feared that, like earlier high-profile presidential aides on vital issues, Ridge would be yet another misnamed ‘czar,’ without real

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power to set budgets, order action, and generally corral the agencies into a common effort.”26 Political Scientist Paul Light also raised doubts about Ridge’s clout: [Tom] Ridge does have the president’s confidence, but his appointment as a member of the president’s Cabinet is only honorary, and he can only make recommendations for action, not implement them. He has no sticks to use against his adversaries and no carrots to offer his friends. As a member of the White House staff, he serves at the pleasure of the president and cannot testify before Congress on the budget or personnel needs of the agencies he oversees. The only power he has is access to the president, but it is a power he shares with dozens of other White House staffers, and one he dare not use. The first time he asks the president to intervene on his behalf with some recalcitrant department head will be the last time he is taken seriously… At the end of the day, there are only two things that matter in bureaucratic politics: money and personnel. Under the president’s order, Ridge will have little influence over either.27

Not all observers were critical however. For example, Ivo Daalder and I.M. Destler argued that: It is simply not possible, nor is it desirable, to bring all the major homeland security functions under a single roof. What is needed instead is leadership, coordination and mobilization of the responsible agencies and their leaders—at the Federal, state and local levels. That is precisely the task President Bush has handed Governor Ridge. Given the number of agencies, interests and people involved, it is a task of truly mammoth proportions. It requires strong, personal support from the President, more than has been evident in the first seven months of Ridge’s tenure… On their own, the structural reforms championed by many critics of the current arrangement will be of little help, and could even undercut Ridge’s ability to influence the broad range of government activity that he can never directly control.”28

Presidential scholar Brad Patterson asserted that Ridge did, in fact, have some influence over homeland security budget allocations: [Ridge] was permitted…to intervene in an unusual fashion in the annual budget process by being able to take a crack at the whole executive branch budget just before the director of the Office of Management and Budget sent it to the president and to ‘certify’ to the OMB director that he ‘believes’ that the funding levels in the budget ‘are necessary and appropriate for the homeland-related activities of the executive branch’29.

Bush and Ridge were well aware of these criticisms and set out immediately to ease concerns about Ridge’s power and authority. In his weekly radio address, the President made clear that Ridge would have total access to him as well as the full support of the federal government: This week, I signed an executive order creating a new Office of Homeland Security. The Office is headed by a skilled and tested leader, former Pennsylvania Governor Tom Ridge. Governor Ridge is a decorated Vietnam combat veteran. He’s an effective executive and he knows what we’re up against, because his own state was one of the three where Americans died on September the 11th. Governor Ridge is charged with coordinating a comprehensive national effort to protect our country against terrorism, to frustrate terrorists’ plans, to help protect vulnerable points, and to prepare our response to

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potential threats. Tom Ridge will report directly to me, and he will have the full support of our entire government [emphasis added].30

In his swearing-in ceremony, Ridge spoke of the need for cooperation among agencies: We will operate from a few basic principles. First, candor. No one should be wary of coming forward when they see a problem. It’s the only way to define a solution. The urgency of our task dictates candor about our challenges and confidence in our ability to solve them. The second, cooperation. We must open lines of communication and support like never before, between agencies and departments, between federal and state and local entities, and between the public and private sectors. We must be task-oriented. The only turf we should be worried about protecting is the turf we stand on [emphasis added].31

Assessments of the first several months of the new office cited that the OHS was not performing up to expectations and, as expected, many of the established bureaucracies were resisting change.32 It had become apparent quickly that without budgetary authority, OHS and Director Ridge lacked the necessary clout to reform the bureaucratic behemoth and overcome interagency turf battles. For example, at the beginning of 2002 when he proposed combining border agencies (including Border Patrol, Coast Guard, and Customs Service) into a single federal organization, Ridge faced stiff resistance from the bureaucracy as well as reluctance from committee and subcommittee chairs in Congress.33 The border agency episode demonstrated that even with the Bush’s ear but without budget authority, Ridge lacked the power to alter the homeland security machinery in a meaningful way. By the spring of 2002, numerous media reports were surfacing that the Bush Administration was rethinking its objections to a formal Department of Homeland Security and that at least some additional governmental reorganization was imminent.34 Later that summer, the Bush Administration surprised most in the Washington and media establishment by announcing a governmental reorganization of monumental proportions.

The Homeland Security Council Often overlooked in E.O. 13228 is Section V which created the Homeland Security Council, a cabinet-level advisory council modeled after the NSC, which was to be “responsible for advising and assisting the President with respect to all aspects of homeland security,” and serving as a “mechanism for ensuring coordination of homeland securityrelated activities of executive departments and agencies and effective development and implementation of homeland security policies.” Membership on the original HSC included the President, the Vice President, key cabinet officials, and any other executive branch officer the President wished to designate.35 Homeland Security Presidential Directive-1 (HSPD-1), issued a few weeks later by Bush, created a principals committee, chaired by the Homeland Security Adviser (Ridge), and a deputies committee, headed by the Deputy Homeland Security Adviser. HSPD-1 also created 11 policy coordinating committees of the HSC each headed by a senior policy member of the HSC staff.36 The HSC was modeled after the NSC itself. One former official observed that HSC was consciously created in the image of the NSC:

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David B. Cohen, Dane S. Egli and Terrence M. O’Sullivan Because we had the NSC model there, our grappling with structure, process, ideas, and people became oriented towards a duplication effort. It was almost a change dynamic that would provide to the President the same degree, quality, and level of counsel for his decisions to be made from this new monster on the table, this new phenomenon on the table, as [had been seen] since 1947, when they had thoughtfully reasoned [the NSC] out.

Like the NSC, HSC meetings with the President during the Bush Administration often occurred in the White House Situation Room. However, based on office proximity to the Oval Office, the homeland security adviser never achieved the status of the national security adviser. Though both had an office in the West Wing, the HSA’s office was in the basement while the national security adviser was located just a few doors down from the President—a clear indication that prestige and access to Bush would be earned, not granted outright.

THE HOMELAND SECURITY ACT OF 2002 Announcing the Formation of DHS The Bush Administration shocked the political establishment on June 6, 2002, by unveiling its plan to establish a new executive branch department to be known as the Department of Homeland Security. In a nationally televised address, Bush announced his intention to “propose a permanent Cabinet-level Department of Homeland Security [in order] to unite essential agencies that must work more closely together… Employees of this new agency will come to work every morning knowing their most important job is to protect their fellow citizens.”37 The proposed governmental reorganization required the Administration to walk back their vehement denials for the need for a new homeland defense organization. Typical of this sentiment, White House Press Secretary Ari Fleischer argued shortly after 9/11 that a new agency was unnecessary: The President just doesn’t see the need for it. It’s just not necessary. The office [of homeland security] can get up and running…without needing to take that step. Now, Governor Ridge will be a member of the Cabinet and will play a very valuable role in coordinating the various agencies that have been involved in the fight against terrorism. And it’s just not necessary. Similar to the National Security Council. Dr. Rice has done a very good job, of course, for this country. She’s not Senate-confirmed. It is not a necessary prerequisite for a government official to do a good job on behalf of the President and on behalf of the war against terrorism. There is no need for it.38

HR 5005 took just over five months to make its way through Congress, a relatively short time considering it ushered in the most massive and complex restructuring of the federal government since the National Security Act of 1947. President Bush remarked at the signing ceremony that The Homeland Security Act of 2002 takes the next critical steps in defending our country. The continuing threat of terrorism, the threat of mass murder on our own soil will be met with a unified, effective response. Dozens of agencies charged with homeland security will now be located within one Cabinet department with the mandate and legal

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authority to protect our people. America will be better able to respond to any future attacks, to reduce our vulnerability and, most important, prevent the terrorists from taking innocent American lives.

DHS began functioning on March 1, 2003, and consolidated 22 existing agencies, some of which were dissected from other executive branch departments.39 Tom Ridge left his post in the White House to become the first Secretary of the Department of Homeland Security. Ridge served until just after the beginning of the Bush Administration’s second term and was succeeded by Michael Chertoff, a Federal Appeals Court Judge who served the remainder of the Bush Administration.

Governance: Title IX Title IX of the Homeland Security Act made permanent Section V of Executive Order 13228. Title IX affirmed a Homeland Security Council whose function was to “advise the President on homeland security matters.” Automatic membership was reduced from the original membership designations of E.O. 13228 and now included the President, Vice President, Secretary of Homeland Security, Attorney General, Secretary of Defense, and any other individual the president wished to designate. Section 905 of Title IX also mandated that the HSC have a staff headed by an Executive Secretary whose pay was not to exceed the pay for the Executive Secretary of the NSC staff. Section 906 authorized the president to convene joint sessions of the HSC and NSC at his discretion.40 OHS was eventually dissolved and some personnel became part of the HSC staff. OHS initially (FY 2002) was a $27 million enterprise composed of roughly 130 individuals, most of whom were detailed from other government agencies. By FY 2004, OHS no longer existed, its functions assumed by a significantly smaller HSC staff of around 35 and a smaller budget of about $7.2 million (the last time the HSC budget was a separate and distinguishable line item from the White House Office budget).41 Following Ridge’s departure to head DHS in March 2003, John Gordon, former deputy director of the CIA, became homeland security adviser. Frances Fragos Townsend, a holdover from the Clinton Administration with experience in the Justice Department and Coast Guard on intelligence issues, succeeded Gordon in 2004 and served until 2007. Townsend was succeeded by Ken Wainstein, assistant attorney general for national security in the Department of Justice, who served the remainder of the Bush presidency.

Testing and Failing: DHS and Katrina42 The mandate contained in the Homeland Security Act of 2002 was clear: “prevent terrorist attacks within the United States; reduce the vulnerability of the United States to terrorism; and minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States.”43 Less than three years later, however, Hurricane Katrina would devastate the Gulf Coast, flood much of New Orleans, and catch the Bush White House unprepared for a devastating natural disaster. Although originally possessed with components critical for a mission broader than just terrorism, DHS redirected resources and

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bureaucratic priorities previously aimed at naturally occurring disaster response toward domestic terrorism security and related law enforcement issues. Most notably, Hurricane Katrina demonstrated that FEMA, one of the 22 agencies crammed under the DHS umbrella after 9/11, had suffered from this neglect of naturally occurring disaster response.44 FEMA was originally chartered as a civilian, natural disaster management and recovery agency, but the 2002 Homeland Security Act contained virtually no mention of non-terrorist threats. DHS hypothetically possessed at a minimum an implied directive for response to natural disaster risks by the very inclusion of FEMA as one of its components, and at least some of the early DHS efforts were directed at such planning.45 Nevertheless, Katrina response clearly demonstrated post-9/11 DHS conflicts between natural disaster and terrorism priorities, in theory and practice, at the level of both bureaucratic structure and execution. The Bush White House had staked its fortunes on terrorism and the wars in Afghanistan and Iraq but failed to make natural disaster planning and response a major national priority. Five months after Katrina, former FEMA Director Michael Brown testified in Congressional hearings that the agency had indeed experienced significantly diminished power after being absorbed by DHS—a reality the Category 3 Katrina demonstrated all too vividly.46 Brown affirmed this neglect of non-terrorism risks, and stated that his agency had become a DHS “stepchild.”47 Hurricane Katrina should have been a triggering event in that it demonstrated that natural disaster preparation had been eclipsed by terrorism in DHS and the White House homeland security structure. However, although the governmental response was heavily criticized, politically damaging the Bush Administration and Republican Party, and helping the Democrats seize Congress in 2006 and the White House in 2008, it appears that the high politics—terrorism-oriented—national security policy-framing prevailed in the end. Although Katrina helped redefine, to some extent, the evolving, multiple (and often competing) definitions and purposes of “homeland security,” and raised the profile of the previously neglected Federal Emergency Management Agency immediately after, the primary mission of DHS continues to be terrorism-related.48

REORGANIZING THE HOMELAND SECURITY APPARATUS IN THE OBAMA WHITE HOUSE Barack Obama is the first president to serve in a post-9/11, post-Bush 43 era. At the beginning of his Administration, there were significant questions as to how the new President would treat the relatively young and emerging homeland security machinery hastily built after 9/11. Throughout the first year of the Administration, a White House homeland security and national security reorganization was considered.49 In the end, the Obama Administration kept both the homeland security adviser and Homeland Security Council, but subordinated the homeland security staff, advice, and policy into the existing National Security Council apparatus. This was a controversial move, with some believing it would strengthen overall U.S. security50, and others not.51 Because the Homeland Security Act provided statutory authority for the existence of both the HSC and homeland security advisor, the Obama Administration chose not to attempt to eliminate them. In fact, the national security adviser and homeland security adviser are the

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only two commissioned officers in the immediate White House mandated by congressional statute.52 Thus, a president cannot just choose to disband the HSC or delete the position of HSA—though he can choose to ignore them as President Harry Truman initially did after the NSC was foisted upon him by a Congress fearful of Soviet communism.53 Instead, an act of Congress would be necessary to eliminate or drastically reorganize the White House homeland security machinery, a very difficult prospect. President Obama selected John O. Brennan, a career CIA officer who left the agency in 2005 and had no background in emergency management to be his first homeland security adviser. Though Brennan held the title of “Assistant to the President” (the highest ranking a commissioned staffer in the White House can achieve), his full title contained “Deputy National Security Advisor for Homeland Security and Counterterrorism”—a clear indication of a subordinate role to that of the national security adviser. In reference to the Obama White House decision to combine the staffs of the HSC and NSC, subordinating the former to the latter, at least one former Bush official acknowledges that there is continuing structural and even mission ambivalence when it comes to reconciling the tensions between more standard terrorism threats and less common but increasingly frequent natural disaster threats: I do think one of the advantages of the Homeland Security staff, early on was the ability to have in house, and certainly in the White House, the expertise, whether it was bio-threats or on natural disasters, or a whole range of issues. To have that depth of staff work and expertise there was always incredibly helpful…I saw it directly. In a sense, to lose some of that organizational structure that then allowed for that expertise to reside in the White House, I think that is potentially a loss.

But that same official noted he wasn’t sure ... whether or not the assistant to the president who was handling all the transnational threats and cyber and intelligence and other issues should also be the one charged with dealing with man-made disasters like the Gulf oil spill and threatening storms, etc., I’m not sure... that the bandwidth and depth is possible at that level. And so I wondered whether having somebody else assigned to those functions or at least a “superempowered” deputy made more sense.

HOMELAND SECURITY IN THE BUSH 43 ERA: LESSONS OF LEADERSHIP AND NATIONAL RESILIENCY The seismic impact of the 9/11 terrorist attacks on the United States, the public policy views of the Bush White House, and the specific leadership personalities in place within the Executive Office of the President dictated the timing, creation, and organization of the Office of Homeland Security, Homeland Security Council and staff, and Department of Homeland Security. Against this administrative and policy backdrop the authors conducted interviews of key Administration officials that reflect the efficacy of the security-related decisions made under the prevailing post-9/11 threat conditions and further reveal the seeds of uncertainty that led to the eventual restructuring of the HSC organization during the early years of the Obama Administration.

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When discussing the strategic imperatives that informed the formation of the OHS and HSC one identifies common themes that emerge with nearly all experts and participants in the homeland security enterprise—then and now. The first is a cultural factor: all systems were pressurized by the traumatic attacks on the homeland that left the Congress, American public, armed forces, and intelligence community as well as coalition members in the international community on edge. Within the White House this led, in the absence of actionable security findings in the emerging “War on Terror” to a reactionary posture. It made organizational and jurisdictional sense to stand up an organization parallel to the NSC—with its international focus—that would look more inside U.S. domestic borders, in contrast to the NSC’s greater outside-the-borders national security focus. A second area raised by interviews of key former Bush officials points to the expediencies of public policy. In the post-9/11 intergovernmental community within Washington interagency players, and particularly within the existing National Security Council, there was a strong motivation to “do something” that would put a sharp focus upon potential policy solutions within the existing governance. And there was also the same perceived mandate for a solution-based policy focus assessing the need for some entity that might improve situational awareness and unity-of-effort that would reduce threats from terrorism. The pressure to act quickly was great. One former Administration official compared it to “trying to change the tire on the truck when it’s going down the highway at 60 miles per hour.” Further, the leadership personalities of the Bush White House—and National Security Council in particular—illuminate important factors which influenced the formation of the HSC structure. National Security Advisor (NSA) Condoleezza Rice, Deputy NSA Steve Hadley, Governor Tom Ridge, and Vice President Richard Cheney figured prominently in the decision to stand up a new structure which paralleled the NSC. In a whole-of-government holistic approach among this leadership cadre, President Bush also sought the consensus of the existing interagency stakeholders. The Bush Administration interviews, from an insider perspective, assert the view that there was agreement—despite uncertainty about further organizations such as a Homeland Security Department—in the utility of having a parallel NSC-like organization to focus on the growing concern over the newly framed, terrorismfocused “homeland security” vulnerabilities. In hindsight, the OHS and HSC served as harbingers for the future and emerging enterprise that eventually became the Department of Homeland Security. It was a necessary, albeit uneven planning, discovery, and learning process that occurred in a highly complex, crisis-driven context of the post-9/11 culture. There were clearly public policy uncertainties, and leadership personalities that reflected essential and inevitable human factors variables. The government officials interviewed for this project were largely strong proponents for establishing the Office of Homeland Security, Homeland Security Council, and staffing infrastructure at the time they emerged. Subsequently, they were also advocates for the HSC integration into the NSC/DHS architecture as the roles and missions of a separate entity like HSC were increasingly able to be performed by the latter two (NSC and DHS), as well as the collective efforts of other interagency actors. A central lesson of the unofficial and then official creation of the Homeland Security Council and its staff appears to be that in times of acute existential crisis, when adaptation and flexibility are at a premium, people matter most. Part of this equation is the leadership component—the ability of those charged with adapting to rapidly changing priorities and

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threats to conceive and facilitate those transformations in ways that are appropriate to existing capabilities and needs. But another important lesson from the early months and years of homeland security planning efforts is the importance of relationships—especially initially, in affording a workaround on the business-as-usual inertia that typically exists in a bureaucratic/organizational environment. The National Security Council, in existence since 1947, continues to be the primus inter parus security apparatus, especially in the White House. But the nascent and then official HSC became a vehicle for allowing the entry of seasoned professionals, many of whom already had established relationships from previous points in their careers. These ranged from those who had worked together at other governmental organizations, or in the White House, to one of the most important relationships of all, between Tom Ridge and George W. Bush, friends from their mutual tenures as large state governors. In sum, while never as powerful, per se, as the older, established NSC, the HSC and its precursor personnel in the Office of Homeland Security afforded two major advantages for the government response to the “new” post-9/11 terrorism threat, especially in the critical first few years. First, they represented the flexible “new kid” on the bureaucratic block—able to avoid getting bogged down by the old (even hide-bound) habits and modus operandi of the more traditional, international security-oriented NSC, and led by a comparative Washington outsider, Tom Ridge. Second, collectively the institutions (OHS and then HSC) helped midwife the birth of the enormous, lumbering, but bureaucratically and operationally more capable (because of its vast size and institutional components) Department of Homeland Security. And all of this occurred while responding to both immediate, acute, and long-term terrorism operations and policy mandates. Terrorism remains a real threat in the United States, and around the world, and despite the elimination of Osama bin Laden, such threats will not wane any time soon. Global Salafist fundamentalism emanating from a variety of regions and failed states, and to a lesser extent from radicalized American citizens (at least far less than in Europe), remains a threat to American and other national interests. There have also been rapidly rising domestic threats from Christian54, white supremacist55, militia56, and radical anti-government anarchist groups57 in recent years—some with proven interest in the overthrow of the American government using weapons of mass destruction.58 Many of these threats must be addressed at the highest levels of government—through the Department of Homeland Security and in the White House National Security Council structure—and collectively rise to the level of traditional national security. Although the post-9/11 White House and executive branch homeland security machinery consisting of the Homeland Security Council and its staff, the homeland security adviser position, and the Department of Homeland Security, was all geared toward the acute perception of terrorism risk, their real value lies not in counterterrorism coordination. This is something the National Security Council can and does oversee. Rather, it is in areas such as response to natural disasters (hurricanes, forest fires, earthquakes, tornadoes, floods), manmade accidents (chemical spills, nuclear reactor meltdowns) and public health emergencies (anthrax, SARS, swine flu, avian flu, and Ebola) where the HSC and homeland security adviser are critical components to the White House advisory system. It is hoped that with the absorption of the HSC staff into the NSC staff, the sexier “high politics” problems of foreign policy and international security will not diminish the importance given to domestic civilian security in mitigating, preparing, and responding to naturally occurring disasters.

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Increasingly, both man-made and natural disasters will be feeding off of each other in dangerous ways over the coming decades. Just as before the 9/11 terrorism attacks and Hurricane Katrina, unless the institutional leadership, expertise, and infrastructure are able to effectively manage these complex, threat multiplying variables, the United States faces the persistent risk of being caught flat-footed and “fighting the last war.”

ENDNOTES “Letter to President Bush Submitting Report on Hurricane Katrina,” February 23, 2006, http://georgewbushwhitehouse.archives.gov/reports/ katrina-lessons-learned/letter.html [accessed March 1, 2016]. 2 Mirroring to some extent, as one former White House homeland security official characterized it, the different historic U.S. intelligence gathering divisions of responsibility between the more domestic-focused FBI and international-focused CIA. 3 From authors’ 2011 and 2014 interviews with former White House and Administration officials. 4 E.g., see “Climate Change Adaptation Roadmap,” Department of Homeland Security, June 2012, https://www.dhs.gov/sites/default/files/ publications/Appendix%20A%20 DHS%20FY2012%20Climate% 20Change%20Adaptation%20Plan_0.pdf [accessed February 28, 2015]; “FY 2014 Climate Change Adaptation Roadmap,” Department of Defense, 2014, http://www.acq.osd.mil/ie/download/CCARprint_wForeword_c. pdf [accessed February 28, 2015]. 5 As the project currently stands, we have not interviewed all of the major players, but only a sample of some of the key members of the Bush Administration. However, this is an ongoing research project and has already provided considerable insight into the history and dynamics of the White House homeland security machinery. 6 M. Leitenberg, “Biological Weapons in the 20th Century: A Review and Analysis,” Critical Rev of Microbiology, Vol. 27, #4, (2001), Pp.267-320. 7 For the unclassified version of PDD-39, see http://www.fas.org/irp/ offdocs/pdd39.htm [accessed September 23, 2011]. 8 AEDPA was signed into law on April 24, 1996, “The Antiterrorism and Effective Death Penalty Act of 1996,” Pub. L. No. 104-132, 110 Stat. 1214. 9 The U.S. government defined homeland defense as: “the protection of US sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the President.” Under this definition, DoD is responsible for homeland defense. In contrast to this, homeland security is defined as: “a concerted national effort to prevent terrorist attacks within the United States, reduce America’s vulnerability to terrorism, and minimize the damage and recover from attacks that do occur.” DHS is the lead agency with respect to homeland security. See “Strategy for Homeland Defense and Civil Support,” Department of Defense, June 2005, p.5, http://www.defense.gov/news/Jun2005 /d20050630homeland. pdf [accessed September 23, 2011]. 10 See for instance Eric V. Larson, David T. Orletsky, and Kristin J. Leuschner, “The 1997 Quadrennial Defense Review: Seeking to Restore Balance,” in Defense Planning in a Decade of Change: Lessons from the Base Force, Bottom-Up Review, and Quadrennial Defense Review (Rand Corporation, 2001), p.85. http://www.rand. org/content/ dam/rand/pubs/monograph_reports/MR1387/MR1387.ch4.pdf. [Accessed March 2, 2015]. 11 E.g., see Amanda Lee Hollis, “A Tale of Two Federal Emergency Management Agencies,” The Forum: Vol. 3: Iss. 3, Article 3, (2005), http://www.bepress.com/forum/ vol3/iss3/art3/ [accessed September 23, 2011]. 12 The U.S. Commission on National Security/21st Century was established in 1998 to assess global threats to domestic security and develop a national security strategy. It was headed by former Senators Gary Hart (DCO) and Warren Rudman (R-NH). U.S. Commission on National Security/21st Century, “Road Map for National Security: Imperative for Change” Phase III, February 15, 2001, http://govinfo.library.unt.edu/ nssg/ [accessed September 23, 2011]. 13 U.S. Commission on National Security/21st Century, “Seeking a National Strategy: A Concert For Preserving Security and Promoting Freedom” Phase II, April 15, 2000, http://www.au.af.mil/au/ awc/awcgate /nssg/phaseII.pdf [accessed September 23, 2011]. 14 Frank R. Baumgartner and Jones, Agendas and Instability in American Politics (Chicago: University of Chicago Press, 1993). 1

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Polling data conducted in the aftermath of the 9/11 attacks showed a jittery American public concerned about terrorism and domestic security and overwhelmingly approving of Bush’s handling of the terrorism issue. For example, in a CBS News poll conducted on October 8, 2001, 85 percent of respondents said that another terrorist attack in the U.S. was “somewhat likely” or “very likely” and in an October 1, 2001, ABC News/Washington Post poll, 92 percent of respondents approved of Bush’s handling of the U.S. campaign against terror. 16 “New Counter-Terrorism and CyberSpace Security Positions Announced,” October 9, 2001, available at: http://georgewbush-whitehouse.archives.gov/news/releases/2001/10/ 20011009-4.html [accessed September 23, 2011. 17 “Address to a Joint Session of Congress and the American People,” September 20, 2001, http://georgewbushwhitehouse.archives.gov/news/ releases/2001/09/20010920-8.html [accessed September 23, 2011]. 18 For the complete text of Executive Order 13228, see http://georgewbush-whitehouse.archives.gov /news/releases/2001/10/20011008-2.html [accessed September 23, 2011]. 19 Regarding the creation of the OHS/HSC in comparison to the long-standing National Security Council (NSC), in 1947 the National Security Act established much of the current U.S. national security structure, including the Department of Defense, Joint Chiefs of Staff, Central Intelligence Agency (CIA), and NSC. 20 Harold C. Relyea, “Homeland Security: The Concept and the Presidential Coordination Office—First Assessment,” Presidential Studies Quarterly, Vol.32, #2, June 2002, pp.397-411. 21 Nick Anderson, “Refusal To Testify Irks Lawmakers,” Los Angeles Times, March 16, 2002, p.A14; Robert Dreyfuss, “Security in the Shadows,” The American Prospect, May 20, 2002, p.15; Dana Milbank, “Hill, White House Still Differ on Ridge Testimony,” Washington Post, March 20, 2002, p.A9; Bill Miller, “From Bush Officials, A Hill Overture and a Snub,” Washington Post, April 11, 2002, p.A27. 22 Ridge did speak with the Senate Appropriations Committee in a closed-door session. Bradley H. Patterson, To Serve the President: Continuity and Innovation in the White House Staff. (Washington, DC: Brookings, 2008), p.122. 23 E.g., see Walter Pincus, “Under Bush, the Briefing Gets Briefer,” Washington Post, May 24, 2002, p. A33. 24 In fact, many in Congress contended that a separate homeland security department or homeland security agency was what was really needed. Before the Bush Administration’s sponsored bill (H.R. 5005) creating DHS was introduced into the House in June 2002, homeland security legislation had already been proposed in the 107th Congress. In the House, Representative Mac Thornberry (R-TX), long-concerned about domestic terrorism, proposed legislation creating a Homeland Security Agency (H.R. 1158) on March 21, 2001, well before the September 11 attacks. In the Senate, Senator Joe Lieberman (D-CT) submitted legislation that would create a formal Department of Homeland Security (S. 1534) just three days after President Bush issued E.O. 13228. Lieberman’s plan was bold and far-sweeping and in fact was the blueprint upon which DHS was eventually built. 25 Elizabeth Becker and Elaine Sciolino, “A New Federal Office Opens Amid Concern That Its Head Won’t Have Enough Power,” New York Times, October 9, 2001, p.B11; Bob Kemper, “Some Doubt Ridge’s Authority,” Chicago Tribune, October 9, 2001, p.4; Aaron Zitner and Eric Lichtblau, “In New Role, Ridge Tackles Security Gaps.” Los Angeles Times, October 9, 2001, p.A3. 26 Sydney J. Freedberg Jr., “Shoring Up America,” National Journal, October 20, 2001, p.3242. 27 Paul Light, “Clout is Key; Post Lacks It,” USA Today, October 9, 2001, p.14A 28 Ivo H. Daalder and I.M. Destler, “Advisors, Czars and Councils: Organizing for Homeland Security,” The National Interest, Summer 2002. 29 Bradley H. Patterson, To Serve the President: Continuity and Innovation in the White House Staff. (Washington, DC: Brookings, 2008), p.120. 30 “Radio Address of the President to the Nation,” October 13, 2001, http://georgewbush-whitehouse.archives.gov /news/releases/2001/ 10/20011013.html [accessed September 23, 2011]. 31 “Gov. Ridge Sworn-In to Lead Homeland Security,” October 8, 2001, http://georgewbush-whitehouse.archives .gov/news/releases/2001/10/ 20011008-3.html [accessed September 23, 2011]. 32 Ivo H. Daalder and I.M. Destler, “Advisors, Czars and Councils: Organizing for Homeland Security,” The National Interest, Summer 2002; Howard Fineman and Tamara Lipper, “Bush’s Homeland Shuffle,” Newsweek, June 17, 2002; John J. Miller, “The Impossible Position of Tom Ridge,” National Review, June 17, 2002; Jason Vest, “Ridge’s Troubled Waters,” The American Prospect, December 3, 2001, p.10. 33 John J. Miller, “The Impossible Position of Tom Ridge,” National Review, June 17, 2002.

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lizabeth Becker, “Bush Is Said to Consider A New Security Department,” New York Times, April 12, 2002, p.A16; David Von Drehle and Mike Allen, “Bush Plan’s Underground Architects,” Washington Post, June 9, 2002, p.A1. 35 Executive Order 13228, http://georgewbush-whitehouse.archives.gov/ news/releases/ 2001/10/20011008-2.html [accessed September 23, 2011]. 36 Bradley H. Patterson, To Serve the President: Continuity and Innovation in the White House Staff. (Washington, DC: Brookings, 2008). For more information as to the organization and operation of the HSC, see “Directive on Organization and Operation of the Homeland Security Council: Homeland Security Presidential Directive1,” issued October 29, 2001, at http://www.dhs.gov/xabout/laws/gc_1213648320189.shtm [accessed September 23, 2011]. 37 “Remarks by the President in Address to the Nation,” June 6, 2002, http://georgewbushwhitehouse.archives.gov/news/releases/2002/06/ 20020606-8.html [accessed September 23, 2011]. 38 “Press Briefing by Ari Fleischer,” October 5, 2001, http://georgewbush-whitehouse.archives.gov/news /releases/2001/10/20011005-3.html [accessed September 23, 2011]. 39 Much has been written over the ensuing years about the workings and growing pains of the Department of Homeland Security, the behemoth entity which eighteen months later (on March 1, 2003) replaced OHS, merging twenty two existing federal agencies and over 200 thousand employees together, in somewhat reluctant fashion. DHS became the third largest cabinet department in government. As of FY 2010, DHS employed around 230,000 people and had a budget of roughly $56 billion. DHS has also been subject to tremendous scrutiny from the public, and particularly from the 108 (at last count) Congressional committees and subcommittees responsible for its oversight. When the “9/11 Commission” reported out in 2004, the number was 86, according to Rep. Peter King. See NPR Staff, “Who Oversees Homeland Security? Um, Who Doesn’t?” National Public Radio, July 20, 2010. Available at http://www.npr.org/ templates/story /story.php?storyId=128642876 [accessed February 28, 2015]. 40 Homeland Security Act of 2002, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi ?dbname=107_cong _public_laws&docid=f:publ296.107.pdf [accessed September 23, 2011]. 41 Bradley H. Patterson, To Serve the President: Continuity and Innovation in the White House Staff (Washington, DC: Brookings, 2008), p.123. See also Homeland Security Policy Institute Task Force Report, “The Homeland Security Council: Considerations for the Future,” April 2009, http://www.gwumc.edu/hspi/policy /TFReport_HS Cconsiderations.pdf [accessed September 23, 2011]. 42 This section is adapted from Terrence M. O’Sullivan, “The Forgotten Dimensions of Homeland Security,” in Terrorism and Homeland Security, Paul Viotti et al., eds, (Taylor and Francis Press, 2008). 43 Homeland Security Act of 2002, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi ?dbname=107_cong _public_laws&docid=f:publ296.107.pdf [accessed September 23, 2011]. 44 See e.g., Brian J. Gerber and David B. Cohen, “Katrina and Her Waves: Presidential Leadership and Disaster Management in an Intergovernmental Context” in Jack Pinkowski, ed., Disaster Management Handbook (Boca Raton, FL: CRC Press, 2008). 45 See, e.g., David Howe, “Planning Scenarios: Executive Summaries,” White House Homeland Security Council, July 2004, http://www.scd.hawaii.gov/grant_docs/ National_Planning_Scenarios_ExecSummaries_ver2.pdf [accessed September 23, 2011]. Of the 15 scenarios listed, three included naturally occurring disasters: major earthquake, major hurricane, and pandemic influenza. 46 Eric Lipton, “White House Knew of Levee’s Failure on Night of Storm,” New York Times, February 10, 2006. 47 Brown further asserted that: “It is my belief [that if] we’ve confirmed that a terrorist has [sic] blown up the 17th Street Canal levee, then everybody would have jumped all over that and been trying to do everything they could,” Brown further asserted. Eric Lipton, “Ex-FEMA Leader Faults Response by White House,” New York Times, February 11, 2006. 48 For a seminal, comprehensive discussion of the many faces of “homeland security,” see Christopher Bellavita, “Changing Homeland Security: What is Homeland Security?” Homeland Security Affairs, Vol.IV, No.2 (June 2008), http://www.hsaj. org/?article=4.2.1 [accessed September 24, 2011]. 49 E.g., see Peter Baker, “Obama is Reported Set to Revise Counterterrorism Efforts,” New York Times, January 8, 2009 and Rob Margetta, “Is HSC and its Chief Transitioning Out of the New Administration?” CQ Politics.com, December 3, 2008. 50 See for example, Tevi Troy, “Homeland Security Council, We Hardly Knew Ya.” Politico (February 1 2010). 51 For example, Christine Wormuth and Jeremy White, “Merging the HSC and NSC: Together Stronger.” Homeland Security Affairs (v. 5, No. 1, January 2009). 34

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Bradley H. Patterson, To Serve the President: Continuity and Innovation in the White House Staff (Washington, DC: Brookings, 2008), p.123. 53 E.g., David Rothkopf, Running the World: The Inside Story of the National Security Council and the Architects of American Power (New York: PublicAffairs, 2005) and John Prados, Keepers of the Keys: A History of the National Security Council from Truman to Bush (New York: Morrow, 1991). 54 E.g., the Hutaree Militia, charged in 2009 with conspiring to kill policemen, bomb civilians, and overthrow the U.S. government. Juan Cole, “Terrorists are Terrorists, Christian or Muslim.” Salon, March 29, 2010, http://www.salon.com/news/feature/ 2010/03/29/hutaree_christian_terrorists [accessed September 24, 2011]. 55 Including efforts by the Pentagon to prevent radicalization and recruitment of white supremacists in the U.S. military. Kevin Baron, “Pentagon Tightens Restrictions on Hate Group Participation,” Stars and Stripes, April 14, 2010, http://www.stripes.com/ news/pentagon-tightens-restrictions-on-hate-group-participation-1.100856 [accessed September 24, 2011]. 56 Militia and most other domestic extremist movements are analyzed by the Southern Poverty Law Center. E.g., see Southern Poverty Law Center, “The Second Wave: Return of the Militias,” August 2009, http://www.splcenter.org/images/dynamic/ main/The_Second_Wave.pdf [accessed September 24, 2011]. 57 Federal Bureau of Investigation, “Domestic Terrorism: The Sovereign Citizens Movement,” April 2010, http://www.fbi.gov/news/stories/2010/ april/sovereign citizens_041310 [accessed September 24, 2011]. 58 For overviews of the nature of the hundreds of non-Islamic domestic groups seeking the overthrow of the elected U.S. government, particularly in the wake of Barack Obama’s election in 2008, see e.g., a report commissioned by the Bush 43 Administration and released early in the Obama years: Department of Homeland Security, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” April 7, 2009, http://www.fas.org/ irp/eprint/ rightwing.pdf [accessed September 24, 2011].

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 11

STRATEGIC STAFFING AFTER 9/11: GEORGE W. BUSH’S NATIONAL SECURITY CZARS Justin S. Vaughn Boise State University, Boise, Idaho, US

ABSTRACT Commentary on the George W. Bush Administration’s response to the terrorist attacks of September 11, 2001, typically focuses on the subsequent bombing of Talibancontrolled Afghanistan and the hunt for Osama bin Laden. Significantly less attention has been paid to the impact 9/11 had on the structure and function of the American government itself, and most of the work that does focuses on the creation of the Department of Homeland Security and the related federal reorganization. Although clearly important, I argue that the Homeland Security expansion and reorganization – both with respect to the administration’s early efforts to create a new White House office and the congressional establishment of the new department – represents only the first of three important phases in the institutional response to the war on terror, each of which had at its core a primary coordinator or policy czar. In this chapter, I detail each of these phases: the administration’s creation of a homeland security czar (a position filled by Pennsylvania Governor Tom Ridge); the creation of an intelligence czar (aka the director of national intelligence, first filled by John Negroponte) in response to reports from a pair of post-9/11 blue-ribbon commission investigations; and the creation of a war czar to coordinate military efforts in Iraq and Afghanistan, a position that was eventually occupied by Lieutenant General Douglas Lute. I then analyze the key factors involved in how each position was created and how each of the individuals charged with coordinating the various operations were able to perform their administrative duties. By conducting this analysis, we not only gain more complete insight into the dynamics of the George W. Bush Administration’s institutional response to the War on Terror challenges but also develop a more nuanced understanding about the factors that both facilitate and constrain high-level executive management in the post-George W. Bush presidency.

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Although the politics of presidential policy czars did not receive much sustained scholarly attention until criticism of Barack Obama’s alleged over-reliance on these so-called super-coordinators emerged during his transition into office, in reality they have been a consistent and almost commonplace administrative phenomenon in the modern presidency.1 A term that emerged from 19th century industrial rhetoric, over the course of the Twentieth Century and into the Twenty-First, presidents have utilized czars both symbolically and substantively in response to crisis moments and, more recently, as a way to manage key policy agenda items. From overseeing food distribution during the Great Depression to managing the nation’s struggles with the energy crisis in the 1970s, czars have emerged as an easy option when presidents have sudden, salient problems to cope with and need to not only solve them, but be seen solving them. Other times, presidents have not been so keen to bring a new high-level coordinator onto their team, but have faced public and/or congressional pressure to do so. In the months and years after September 11th, 2001, George W. Bush thrice found himself in one of these situations or the other. In this essay, I explore these moments and discuss the individuals eventually chosen to take these positions. Following these brief case analyses, I conclude with a discussion linking President Bush’s utilization of these czars with the broader pattern to which his predecessors and successor have contributed.

EXECUTIVE BRANCH COORDINATION AFTER 9/11 An event on par with the November 1963 assassination of John F. Kennedy and the December 1941 attack on Pearl Harbor, the events and aftershocks of September 11, 2001, have been the subject of extraordinary study and scholarship. A great deal of this commentary seeks to explain what happened and why, while much of the focus on the consequences of that dark day emphasize the Bush Administration’s decisions concerning subsequent military action abroad, both in Afghanistan and Iraq, the classification and treatment of enemy combatants, and the tension between protecting civil liberties and waging the war on terror. Less attention has been paid to the government’s systemic institutional response to the 9/11 attacks, most notably in the creation of the Department of Homeland Security, but also evident in changing missions and structures for the FBI, CIA, Department of Defense, and a host of other administrative entities. As these organizations swelled and evolved, policy and bureaucratic dynamics demanded special attention, even if not quite with the support of the administration itself. At three separate instances, the Bush Administration either took the initiative to create a new czar position or bowed to external pressure and did so. These instances include the selection of Tom Ridge as the nation’s first Homeland Security czar, the choice of John Negroponte as the nation’s first National Intelligence czar, and the selection of Lt. General Douglas Lute as the so-called war czar in charge of overseeing operations in Iraq and Afghanistan after those wars each took downward turns in the final years of George W. Bush’s presidency.

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TOM RIDGE, HOMELAND SECURITY CZAR (OCTOBER 2001-JANUARY 2003) Nine days after 9/11, George W. Bush addressed a joint session of Congress. As he laid out his plan to respond to the recent attacks, he included the creation of a new Office of Homeland Security, which would be headed by Pennsylvania Governor Tom Ridge.2 Ridge had previously been considered as Bush’s running mate in 2000, as well as a potential candidate for Secretary of Defense. Now he was already involved in post-9/11 decisionmaking, a result of United Airlines Flight 93 crashing in his state. On October 8, Bush signed Executive Order 13228 establishing formally the OHS, as well as the Homeland Security Council (HSC), and outlining the nature of Ridge’s position.3 That same day, Supreme Court Justice Clarence Thomas swore Ridge in as the first OHS director. In remarks preceding Ridge’s swearing-in Bush said, “Together, we will confront the threat of terrorism. We will take strong precautions aimed at preventing terrorist attacks and prepare to respond effectively if they might come again. We will defend our country, and while we do so, we will not sacrifice the freedoms that make our land unique.” Bush noted Ridge’s experience as a chief executive as well as his decorated combat service in Vietnam as he reiterated Ridge’s mission: “to design a comprehensive, coordinated national strategy to fight terror here at home.”4 This high profile effort by the administration to convey the importance of Ridge’s position and the influence and resources it would command, however, failed to convince all observers. A “cacophony of voices” called for even more substantial government reorganization and (ironically) questioned whether the position would be influential as well as whether OHS would be responsive enough to Congress.5 A media narrative quickly developed concerning Ridge’s perceived lack of clout.6 Given the nature of his appointment (i.e., without authorizing legislation from Congress), Ridge held limited formal authority to force cooperation across the dozens of agencies and countless government officials involved in the nation’s various homeland defense efforts.7 Indeed, many were confused as to how many agencies were even under Ridge’s purview; according to an Office of Management and Budget report, almost seventy agencies supported counterterrorist activities, while other estimates ranged from 40-130 distinct administrative entities.8 This “administrative nightmare” was Ridge’s reality as the Bush Administration tried to work out worked which agencies Ridge would rule, if any at all.9 Soon after he took office, Ridge addressed the need to improve inter-agency cooperation as he noted the need to “open lines of communication and support like never before between agencies and departments, between federal and state and local entities, and between the public and private sectors.” Several days later, Ridge convened a number of officials together before the media to showcase their ethos of collaboration, also emphasizing during this event his easy access to and support from Bush; the president was “10, 15 paces away” and had told relevant cabinet secretaries they must defer to Ridge’s oversight efforts.10 Events such as these failed to reverse the developing narrative, however, as evidenced by an article at the time that appeared in the Washington Post. A key passage in it read:

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Justin S. Vaughn On paper and in person, Tom Ridge seems the ideal person to take over protection of the homeland from enemies within and without. He has a benign face, a working-class background, a good record in Vietnam and in the House. In any circle but those of the federal cutthroats who guard their turf, his friendship with the commander in chief would be a boon. But the gladiators he is about to face devour czars.11

Bipartisan skepticism persisted, with comments from individuals ranging from former drug czar Barry McCaffrey to Senator Charles Schumer expressing concern about Ridge’s ability to perform his duties and not, as McCaffrey colorfully suggested, “turn into little more than the speaker’s bureau for homeland defense.”12 Soon, however, the narrative shifted from one of weakness to one of incompetence, thanks to the perceived sluggishness of the government’s response to an anthrax crisis that fall.13 A nationwide run on duct tape due to a comment made by Ridge in November and a much-lampooned color-coded national alert plan early the next spring kept Ridge and OHS on their heels.14 Ridge’s decision around the same time to refuse to testify before the Senate Appropriations Committee added a more serious dimension to these troubles.15 This refusal was based on the administration’s belief that, as a non-confirmed member of the White House staff, Ridge was not only not obligated to provide testimony but also that doing so would violate presidential prerogative.16 The administration would eventually agree to a compromise: Ridge would meet privately with key members of Congress and attend an informal session with a House of Representatives Appropriations subcommittee and the House Government Reform Committee, but not officially testify.17 By mid-spring, faced with growing support for Senator Joseph Lieberman’s (D-CT) plan to create a new homeland security cabinet department, the Bush Administration executed a “sharp-elbowed pirouette,” abruptly changing and now agreeing the position should be elevated to official cabinet status via comprehensive reorganization legislation.18 President Bush introduced the administration’s new plan during a national address in early June.19 The next day, in remarks preceding a presidential press conference, Bush announced another reversal: he would be directing Ridge to testify before Congress, albeit on the need for the kind of reorganization Bush’s plan called for.20 As the summer progressed and the administration sought to sell its new plan, a consistent theme was the emphasis of how important Ridge had been to the national security efforts of the administration.21 Rather than being a “failed czar,” Ridge was framed as the author of a bigger and better plan to “meet the threats of today while planning for the unknown threats of tomorrow.”22 The remainder of the summer and then fall were taken up by public debates and, later, congressional squabbles over the merits of the administration’s plan. After finally solving a thorny problem concerning whether employees of the proposed department would be allowed to unionize like other federal workers, the Republicans were eventually able to pass the legislation during a lame duck session following the 2002 midterms, which had returned Senate control to the president’s party. On November 22, 2002, Bush signed into law the legislation creating the new Department of Homeland Security (DHS) and announced Ridge as his nominee to be its first secretary.23 Ridge would receive unanimous confirmation early the next year, marking the end of the era of the homeland security czar.24

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JOHN NEGROPONTE, NATIONAL INTELLIGENCE CZAR (APRIL 2005-FEBRUARY 2007) Five months after 9/11, the Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001 commenced a major investigation into the intelligence failure that had allowed the terrorist attacks to take place. Nine months later, it was joined by the National Commission on Terrorist Attacks Upon the United States, known to most as the 9/11 Commission. Both would release comprehensive reports that, despite their differences, pointed to the need for the Intelligence Community to be reformed.25 The 9/11 Commission in particular recommended the president appoint a national intelligence director with complete authority over budgets and appointments to the most important national security and intelligence agencies.26 The initial plan was for the position to head an office located within the Executive Office of the President (EOP), incorporating it entirely within the organizational White House.27 Numerous politicians quickly embraced this initiative, though President Bush’s reaction was somewhat more ambivalent, not to mention unclear regarding the extent to which he believed the new director should be empowered, as he contradicted himself publicly on a few occasions.28 Bush’s unease can be explained as a function of internal White House politics, with both Secretary of Defense Donald Rumsfeld and Vice President Dick Cheney pushing back against any additional external checks on authority over Department of Defense actions.29 Congress also contributed to the political conflict over the new position, as the House of Representatives and Senate each passed out their own, starkly different bills. The Senate’s bill was more in line with the original 9/11 Commission’s suggestions, creating a robust and empowered office, while the House’s version resembled that advocated by Rumsfeld and Cheney.30 It would take months for the differences to be resolved, and only after significant compromise and public pressure from families of the 9/11 victims. Finally, on December 17, 2004, Bush signed the Intelligence Reform and Terrorism Prevention Act into law. Upon signing, the president referred to the new law as “the most dramatic reform of our nation’s intelligence capabilities since President Harry S. Truman signed the National Security Act of 1947,” noting the bill’s creation of a more unified and effective Intelligence Community.31 Unfortunately, Bush’s words would quickly prove more hopeful than prophetic. The compromise version accomplished significant organizational reshuffling, but failed to empower the new director to the necessary degree, limiting the chance that the previously decentralized intelligence community could be spun into a tightly knit singular entity.32 Instead, thanks to efforts by Rumsfeld and others, the Pentagon emerged even more powerful than before.33 Reflecting the widespread view that Congress had missed a legislative opportunity, critics assailed the inadequate footing the new intelligence czar had been given. According to one, “The DNI is not director of anything, nor is the role national or really even intelligence. Instead of coordinating and directing the sixteen members of the Intelligence Community, this role has been reduced to hectoring through small budget realignments and a barrage of questions issued through small budgets by nearly 2,000 bureaucrats with no welldefined purpose.”34 This institutionalized weakness would soon complicate Bush’s efforts to staff the new position. Preferred candidates - such as 9/11 Commission Chair Kean, General Tommy Franks, and former CIA Director Robert Gates - were uninterested in the position.35 By

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February 2005, however, Bush announced John Negroponte, former ambassador to both the United Nations and Iraq, as his choice.36 As Bush then noted, “The Director's responsibility is straightforward and demanding. John will make sure that those whose duty it is to defend America have the information we need to make the right decisions.”37 The president promised Negroponte would helm a “unified” Intelligence Community and be his principle adviser on intelligence matters. Due to Negroponte’s experience, members of Congress as well as the Washington talking-heads community both gave him the initial benefit of the doubt.38 As former CIA Director John Deutch said at the time, “My worry is more about the position than about him,” a reflection an unnamed CIA division chief seconded, saying, “It’s a crummy job. He’s got no troops, no power. But Negroponte is the kind of guy who’s always taken thankless jobs.”39 Other voices, however, were more skeptical, primarily suggesting that although Negroponte had incredible global experience, virtually none of it concerned the intelligence community directly.40 Nevertheless, Negroponte received Senate confirmation a few months later. At his swearing-in ceremony, President Bush repeated the arguments he made when the new director was first nominated: Ambassador Negroponte’s position is one of the newest in the Government and one of the most demanding. Our Nation is at war, and John is making sure that those whose duty it is to defend America have the information we need to make the right decisions. He’s ensuring that our intelligence agencies work as a single, unified enterprise. And he’s serving as my principal intelligence adviser. These are vital and urgent responsibilities, and John has what it takes to fulfill them all.41

As was the case with the previously, Bush’s optimism would ultimately prove to be unfounded, as Negroponte fought a series of losing turf wars with all the agencies he was supposed to oversee (e.g., DOD, DOJ, and CIA, among others). Each loss underscored the powerlessness of the new position. By fall, Negroponte had learned the CIA was reluctant to coordinate all human intelligence operations and the FBI was unable to get their own counterintelligence section up and running with any efficiency.42 Further undermining the position, DOD was given permission to conduct its own covert operations and both the Pentagon and the FBI were permitted to gather human intelligence independently, thwarting the original purpose of the very legislation that created the DNI.43 Also complicating matters, Negroponte allowed his office to be assigned new mandates, such as “fostering the growth of democracies,” unrelated to its core mission.44 As fall turned to winter, Negroponte increasingly became a target for criticism. The winter was tumultuous – CIA Director Porter Goss was pushed out (and replaced by Negroponte’s own deputy, Air Force General Michael Hayden), a warrantless wiretapping scandal continued to unfold, and for the first time internal discussions about reassigning Negroponte commenced.45 The situation was not entire gloomy, however. Negroponte achieved civil liberty protections for alleged terrorists, developed a National Intelligence Priorities Framework, restructured the way expertise was coordinated on key national security issues, set up a new National Counterproliferation Center, strengthened the National Counterterrorism Center, created the national Digital Intelligence Library, and improved the process by which the president’s daily briefing was developed and presented, among other

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key accomplishments.46 Critics accused Negroponte of taking to this last task too enthusiastically, however, alleging he was too focused on being an analyst/briefer and not enough on being a manager, though strategically it was arguably the director’s best opportunity to influence the president, particularly in light of the compromised nature of his position.47 Eventually, despite these successes, Negroponte was reassigned to a new position as Deputy Secretary of State. His replacement, Admiral John McConnell, ran into the same structural weaknesses of the position; despite being a close ally of Vice President Cheney and having significantly more experience with the intelligence community than Negroponte had.48 These structural weaknesses prompted Bush to try to bolster the office’s power via Executive Order 12333 (which encouraged managers in each of the intelligence agencies to follow the leadership of the intelligence czar); nevertheless, the position remained in need of power and resources it did not have.49 Negroponte’s experience (as well as those who succeeded him as director) provides evidence that despite the strong suggestions of high-level commissions and congressional prioritization of the issue, the intelligence overhaul that created the directorship did very little to create the unity Bush promised when nominating and then swearing-in the first Director of National Intelligence.50 Instead, coordination of the intelligence community became more nebulous and confounding. Indeed, rather than help solve the problems with national intelligence that enabled the terrorists’ attacks, the creation of the intelligence czar actually exacerbated them. Unfortunately, even as Negroponte’s stint as intelligence czar was winding down, the Bush Administration was being pressured to create yet another national security czar. In this case, demand was for someone to coordinate the failing wars in Afghanistan and Iraq.

DOUGLAS LUTE, WAR CZAR (JUNE 2007-SEPTEMBER 2013) In December 2006, as Negroponte moved to a new position in the State Department, the Iraq Study Group released a report finding the war situation in Iraq to be “grave and deteriorating.” The report went on to urge significant changes in how the war was being waged.51 Congress had appointed the commission in March 2006 in response to the war’s increasing unpopularity. The report quickly became influential, with both the Bush administration and the military hastily taking steps to incorporate many of it suggestions. Within the administration, a growing consensus held that the deteriorating war effort was largely a function of the lack of cooperation between the myriad agencies involved. It was determined that a single point-person with direct access to the president must be found to oversee these bureaucratic interactions. The administration spent much of the spring of 2006 searching for the right person, though as was the case with the intelligence czar position, they struggled to find a person with the right prestige who would accept the portfolio.52 Once again, several high-profile individuals turned the administration down, a testament both to concerns about the formal authority of the position and to unwillingness for many to tangle with Vice President Cheney, who at this point in the administration still maintained significant sway over the president’s decision making. According to a Washington Post

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article that broke the story, the administration wanted a high-powered czar in charge of the Iraq and Afghanistan wars, but was unable to find anyone both well-equipped and willing to accept the position.53 Eventually, Lt. General Douglas E. Lute agreed to accept the position in mid-May, 2007, though not without some promised considerations.54 Lute was considered by some to be a somewhat surprising choice, due to his “streak of daring independence” as well as his prior opposition to the troop surge in Iraq, the hallmark of the administration’s second-term military policy.55 Nevertheless, the administration went to great lengths to celebrate Lute’s selection. Bush noted, as he announced Lute’s selection: In his new position, General Lute will be the full-time manager for the implementation and execution of our strategies for Iraq and Afghanistan and will manage the interagency policy development process for these two theaters, working closely with my National Security Adviser, Steve Hadley, members of my Cabinet, and me. Nothing is more important than getting Admiral Fallon, General Petraeus, American commanders in Afghanistan, and Ambassadors Crocker and Wood what they need, and Douglas Lute can make sure that happens quickly and reliably.56

In an unorthodox move, the White House also distributed a public relations fact sheet (“Lt. General Lute Is Taking On A Vital Mission At A Critical Time”) emphasizing the new war czar’s extensive authority as well as his access to President Bush.57 Following his comparatively hasty confirmation, Lute’s primary responsibilities initially concerned lobbying Congress to support the administration’s new restructuring plans. By fall, however, the war czar portfolio expanded as then-Secretary of State Rice delegated to Lute responsibility for negotiating status of force agreements with the Iraqi government.58 Lute’s role in this capacity was soon lauded, and Bush and Iraqi Prime Minister Maliki would sign a Declaration of Principles (the first of a three-part negotiation process) in late November.59 The process was not entirely smooth, however, as comments made by Lute around the same time that seemed to minimize the importance of Congress in subsequent negotiations led to concerns and criticism from the legislative branch.60 Key players in the administration had to quickly do damage control and go to greater lengths involving Congress, as a result.61 By 2008, a growing cadre within the administration began working together to reverse some of the administration’s more hawkish policies toward the conflict in Afghanistan. The “drift into chaos” in Afghanistan that became a campaign issue in the 2008 presidential election led Lute and others – including Elliot Cohen, Secretary Rice’s top deputy – to advocate changes to the war effort there.62 By summer, President Bush came to the same conclusion and ordered the war czar to prepare a “soup-to-nuts” review of the Afghanistan strategy.63 This amounted to a significant change of priorities for the administration, a reflection both of the growing concern about Afghanistan as the positive gains made in Iraq after the troop surge there. Lute assembled a “high-powered” inter-agency team and went right to Afghanistan, where he found “about 10 distinct but overlapping wars in progress.”64 According to Bob Woodward:

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First, there was the conventional war run by a Canadian general in charge of the region for NATO. Second, the CIA was conducting its own covert paramilitary war. The Green Berets and the Joint Special Operations Command each had their own wars, tracking down high-value targets. The training and equipment command ran its own operations. The Afghan National Army, the Afghan National Police and the Afghan National Directorate for Security, the country’s CIA-sponsored intelligence agency, were also fighting separate wars. By placing different icons on a map of the regional command that included Kandahar, he could see how the ten different wars were sprinkled around. They looked like the scribbles of a child. Nobody was in charge. There was no unity of effort or command.65

Returning to Washington, Lute convened a wide-range of extensive meetings with representatives of virtually every group involved in the Afghanistan strategy, moving quickly in order to prepare a meaningful report for the president even as the clock would down on the administration.66 It would not be until weeks after Barack Obama defeated John McCain in the battle to become Bush’s successor that Lute’s report would receive consideration at a meeting of the National Security Council.67 The report concluded that, in order to prevail in Afghanistan, three significant challenged had to be overcome: governance had to be improved and corruption curtailed, the opium trade needed to be controlled, and, most importantly, Pakistani safe havens needed to be reduced and eventually eliminated.68 Although wellreceived by President Bush, the decision was made to keep the report classified and hand it to the incoming administration for use as a “principal transition document.”69 Lute would eventually stay on in the Obama Administration, though his report was cast aside as the new team solicited another analysis by yet another expert.

CONCLUSION Taken together, the experiences of the three national security czars that came to prominence during the George W. Bush Administration exhibit the politics surrounding policy czars in the modern presidency. All three positions were created in response to public and political elite concern over a rising and salient policy problem. For Tom Ridge, he was a quick and obvious choice to helm a new White House office designed to coordinate comprehensive national security strategic policy, an office that eventually became a Cabinet department, but not after some significant inter-branch conflict with Congress. John Negroponte and Douglas Lute, however, both took positions created not through administration initiative, but instead in response to external forces and without enthusiasm. Similarities between Negroponte and Lute dwindle from there, however. Negroponte was a high-profile choice to serve as Director of National Intelligence. Though he did not possess substantive experience in intelligence, he had a rich and varied past as public servant, including noteworthy posts in the administration previously such as Ambassador to the United Nations (2001-2004) and Iraq (2004-2005). Lute, on the other hand, possessed significant expertise in military affairs, having served in the Army since graduating West Point in 1975, including serving as Director of Operations at U.S. Central Command from 2004-2006. Even so, he was not a high-profile choice to be war czar – in fact, he was only selected after several other high-profile individuals, including eventual Secretary of Defense Robert Gates – turned the position down. The experiences between Negroponte and Lute

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further diverge, as Negroponte saw his power chipped away at over time before being reassigned to the Department of State, while Lute’s role only increased as the end of Bush’s presidency drew closer. Rather than resign or be reassigned, the Obama Administration kept on Lute for many years, where he eventually became Ambassador to NATO in 2013. Despite the differences between the three czars discussed in this essay, numerous commonalities persist, both between this trio and the larger community of czars over the past half-century. Each faced persistent challenges regarding their authority, both from the perspective of not having enough authority to move recalcitrant bureaucrats to support their (and ostensibly the president’s) vision and, conversely, the notion that they have so much power that they pose an illegitimate threat to congressional turf. All three found success and failure alike, the function of numerous factors, including unclear job descriptions, strategic errors, and broader political struggles beyond the confines of their bureaucratic homes.

ENDNOTES This essay was originally prepared for presentation at Hofstra Unversity’s Conference on the George W. Bush Presidency, March 24-26, 2015, Hempstead, NY. Passages have been adapted from Justin S. Vaughn and Jose D. Villalobos’s Czars in the White House: The Rise of Policy Czars as a Presidential Management Tool (University of Michigan Press, 2015). 2 Mitchel A. Sollenberger and Mark J. Rozell, The President’s Czars: Undermining Congress and the Constitution (Lawrence, KS: University Press of Kansas, 2012), 139-40. 3 Sollenberger and Rozell, 2012, 139-40; the executive order is available online at: http://www.presidency.ucsb.edu /ws/index.php?pid=61509. 4 George W. Bush, “Remarks at the Swearing-In Ceremony for Tom Ridge as Director of the Office of Homeland Security,” The Public Papers of the Presidents (The American Presidency Project), October 8, 2001b, http://www.presidency.ucsb.edu/ws/index. php?pid=62592. 5 Richard S. Conley, “Presidential and Congressional Struggles over the Formation of the Department of Homeland Security,” in Transforming the American Polity: The Presidency of George W. Bush and the War on Terrorism, ed. Richard S. Conley (New York: Pearson, 2005), 136-7. 6 Eric Pianin and Bradley Graham, “New Homeland Defense Plans Emerge; Fearing Ridge Lacks Clout, Lawmakers Float Proposals for Super-Agency,” The Washington Post, September 26, 2001, A4; Judy Keen, “Ridge Will Have Clout, Bush Aide Stresses,” USA Today, September 28, 2001, 13A. 7 Thomas Fitzgerald and Diane Mastrull, “Ridge Charged with Unifying Terrorism Fight,” The Philadelphia Inquirer, September 23, 2001, D3. 8 O’Hanlon et al., 2002, 99-100; Alison Mitchell, “Disputes Erupt on Ridge’s Needs for His Job,” New York Times, November 4, 2001, B7. 9 USA Today, “Defeating Terrorism Requires Beating Bureaucracy First,” USA Today, September 25, 2001, 12A. 10 August Gribbin, “Ridge Sees a Secure U.S. Homeland; Americans Reassured of Efforts,” The Washington Times, October 19, 2001, A1. 11 Mary Mcgrory, “Security Czar’s Homeland Challenge,” The Washington Post, October 11, 2001, A3. 12 Eric Pianin and David S. Broder, “Ridge Defends His Role as ‘Coordinator’; Security Chief Sees Advantages in Not Grabbing the Helm,” The Washington Post, November 18, 2001, A5; Chuck McCutcheon, “Homeland Czar: Big Job, Little Power?” Aviation Week and Space Technology, 155, 22 (2001): 58. 13 Mike Allen and Eric Pianin, “Ridge Carries Message on Anthrax; Homeland Security Director’s Role in Federal Response Comes Under Scrutiny,” The Washington Post, October 25, 2001, A4; Thomas M. DeFrank, “Critics Call White House Bush League,” New York Daily News, October 25, 2001, 6; Clarke, 2004, 249-50. 14 Tom Ridge, The Test of Our Times: America Under Siege … And How We Can Be Safe Again (New York: Thomas Dunne, 2009), 80, 83-104. 15 Conley, 2005, 104. 16 Ibid.; Sollenberger and Rozell, 2012, 140. 17 Conley, 2005, 104. 1

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Robert Draper, Dead Certain: The Presidency of George W. Bush (New York: Free Press, 2007), 170; Conley, 2005, 137. 19 George W. Bush, “Address to the Nation on the Proposed Department of Homeland Security,” The Public Papers of the Presidents (The American Presidency Project), June 6, 2002d. http://www.presidency. ucsb.edu/ws/index.php?pid=73024; Conley 2005, 137. 20 George W. Bush, “Remarks Prior to a Meeting with Congressional Leaders and an Exchange with Reporters,” The Public Papers of the Presidents (The American Presidency Project), June 7, 2002e, http://www.presidency.ucsb.edu/ws/index. php?pid=73026. 21 George W. Bush, “Remarks to Federal Employees on the Proposed Department of Homeland Security,” The Public Papers of the Presidents (The American Presidency Project), July 10, 2002f, http://www.presidency.ucsb.edu/ws/index.php?pid=73054. 22 Incidentally, this effort to share authorship with Ridge contrasted with reports of his previous discomfort with the idea of a cabinet-level department, not to mention his actually helming one. Richard Clarke, for example, recalls Ridge telling him at the time that the last thing the administration needed to do was reorganize and create a new department; Clarke also suggests Ridge loathed the idea of becoming a cabinet secretary. George W. Bush, “Message to the Congress Transmitting Proposed Legislation to Create the Department of Homeland Security,” The Public Papers of the Presidents (The American Presidency Project), June 18, 2002g, http://www.presidency. ucsb.edu/ws/index.php?pid=64050; See also: George W. Bush, “Remarks on the National Strategy for Homeland Security,” The Public Papers of the Presidents (The American Presidency Project), July 16, 2002h, http://www.presidency.ucsb.edu/ ws/index.php?pid=64520; George W. Bush, “Remarks on Proposed Legislation to Establish the Department of Homeland Security,” The Public Papers of the Presidents (The American Presidency Project), July 26, 2002i, http://www.presidency. ucsb.edu/ws/index.php?pid=64724. 23 Conley, 2005, 135. 24 Sollenberger and Rozell, 2012, 168. 25 Loch K. Johnson, The Threat on the Horizon: An Inside Account of America’s Search for Security after the Cold War (Oxford: Oxford University Press, 2011), 386. 26 National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (New York: W.W. Norton, 2004), 411; Jordan Tama, Terrorism and National Security Reform: How Commissions Can Drive Change During Crisis (Cambridge: Cambridge University Press, 2011): 3, 164-9. 27 Johnson, 2011, 387. 28 Ibid., 387, 388. Melissa Boyle Mahle, Denial and Deception: An Insider’s View of the CIA from Iran-Contra to 9/11 (New York: Nation Books, 2004), 347. 29 Ibid., 388, 399. 30 Johnson, 2011, 389. 31 Ibid., 391-2. 32 Johnson, 2011, 392. 33 Marks, 2010, 122-3; Johnson, 2011, 385; Amy B. Zegart, Spying Blind: The CIA, the FBI, and the Origins of 9/11 (Princeton: Princeton University Press, 2007), 183; Johnson, 2011, 392. 34 Marks, 2010, 123. 35 George W. Liebmann, The Last American Diplomat: John D. Negroponte and the Changing Face of American Diplomacy (London: I.B. Tauris, 2012), 203. 36 George W. Bush, 2009, “Remarks on Presenting the Presidential Medal of Freedom at the Department of State,” The Public Papers of the Presidents (The American Presidency Project), January 15, 2009, http://www.presidency.ucsb.edu/ws/ index.php?pid=85426. 37 George W. Bush, “The President’s News Conference,” The Public Papers of the Presidents (The American Presidency Project), February 17, 2005a, http://www.presidency.ucsb.edu/ws/index.php?pid=62597. 38 Liebmann, 2012, 263. 39 Michael Hirsh, “Tough Diplomacy,” Newsweek, February 17, 2005. 40 Judy Keen and Andrea Stone, “Negroponte Has History of Tough Jobs,” USA Today, February 18, 2005, 7A. 41 George W. Bush, “Remarks at a Swearing-In Ceremony for John D. Negroponte as Director of National Intelligence and Michael V. Hayden as Deputy Director of National Intelligence,” The Public Papers of the Presidents (The American Presidency Project), May 18, 2005c, http://www.presidency.ucsb.edu/ws /index.php?pid=73648. 42 Liebmann, 2012, 268.

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Ibid., 280. Ibid., 279. 45 Ibid., 280; Hastedt 2009, 253; Liebmann, 2012, 273, 284, 285. 46 Liebmann, 2012, 266-72; Johnson, 2011, 396-7. 47 Liebmann, 2012, 272. 48 Ibid., 285; Harris 2010, 323-4. 49 Harris 2010, 323; Johnson, 2011, 393, 397; Johnson, 2012, 31; See also: Hastedt 2009, 349. 50 Ibid., 33. 51 James A. Baker, III, Lee H. Hamilton, and Lawrence S. Eagleburger, The Iraq Study Group Report: The Way Forward – A New Approach (New York: Vintage, 2006), xiii. 52 Peter Baker and Thomas E. Ricks, “3 Generals Spurn the Position of War ‘Czar’; Bush Seeks Overseer for Iraq, Afghanistan,” Washington Post, April 11, 2007, A1. 53 Ibid.; Steven Edwards, “Top U.S. Generals Turning Down ‘War Czar’ Job; Would Answer Directly to Bush. But So Does Cheney, and There’s the Rub,” Montreal Gazette, April 12, 2007, A18; Peter Baker and Brendan Nicholson, “No Takers for White House War Tsar Position,” Washington Post, April 12, 2007, 11; Ewen MacAskill, “Top US Generals Reject War Tsar Role for Iraq and Afghanistan: Bush Struggles to Find Candidate for New Post, Chaotic Approach and Cheney Attitude Blamed,” The Guardian (London), April 12, 2007, 18. 54 According to Bob Woodward’s account, Lute’s willingness to take the position that several other military leaders had declined can be attributed to a promise made by Secretary of Defense Gates that Lute “would be taken care of later with an important assignment from the [Joint Chief of Staff] chairman.” Bob Woodward, Obama’s Wars (New York: Simon and Schuster, 2010), 339. 55 Woodward, 2010, 41; Bob Woodward, The War Within: A Secret White House History 2006-2008 (New York: Simon and Schuster, 2008), 234, 298; Stolberg, 2007b, 9. 56 George W. Bush, “Statement on the Appointment of Lieutenant General Douglas Lute as Assistant to the President and Deputy National Security Adviser for Iraq and Afghanistan,” The Public Papers of the Presidents (The American Presidency Project), May 15, 2007, http://www.presidency.ucsb.edu/ws /index.php?pid=75091. 57 The extraordinary nature of this effort was reinforced during a May 16, 2007 press conference when a reporter asked Press Secretary Tony Snow about the fact sheet and, particularly, the prepared quotes, noting it was a new development in the White House’s outreach efforts.. George W. Bush, “Fact Sheet: Lieutenant General Douglas E. Lute: Experience and Authority,” The Public Papers of the Presidents (The American Presidency Project), May 15, 2007, http://www.presidency.ucsb.edu/ws/index.php? pid=83497. 58 Woodward, 2008, 396-8. 59 Dana Perino and Dr. Ali Al-Dabbagh, “Press Gaggle by Dana Perino and Dr. Ali Al-Dabbagh, Spokesman for the Government of Iraq,” October 18, 2007a, http://www.presidency.ucsb.edu/ws/index.php?pid=75927. 60 Dana Perino and Dr. Ali Al-Dabbagh, “Press Gaggle by Dana Perino and General Douglas Lute, Assistant to the President for Iraq and Afghanistan,” November 26, 2007b, http://www.presidency.ucsb.edu/ws/index.php?pid =76073; See also: Michael John Garcia, R. Chuck Mason, and Jennifer K. Elsea, “Congressional Oversight and Related Issues Concerning the Prospective Security Agreement between the United States and Iraq,” Congressional Research Service Report for Congress, Order Code RL34362, 2008. 61 Jon Ward, “U.S. Stay in Iraq at Issue; White House Attacks Rumor,” The Washington Times, February 2, 2008, A1. 62 Peter L. Bergen, The Longest War: The Enduring Conflict between America and al-Qaeda (New York: Free Press, 2011), 193, 194. 63 Woodward, 2010, 194. 64 Woodward, 2010, 41, 42. 65 Ibid., 42-3. 66 Ibid., 43; Miller, 2010, 5; Gordon Lubold, “Military Sees Window to Adjust Afghanistan Plan,” Christian Science Monitor, October 1, 2008, 2. 67 Woodward, 2010, 40. 68 Ibid., 44. 69 Miller, 2010, 6. 44

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 12

GEORGE W. BUSH, STRATEGIC JUSTICES, AND LEGACY BUILDING ON THE U.S. SUPREME COURT David A. Yalof University of Connecticut, Storrs, CT, US

ABSTRACT Modern presidents seek to fill high court vacancies by appointing justices who will cast their votes in a manner consistent with the president’s own preferences. Yet while presidents have been generally successful at choosing like-minded justices, that success will not always impact the direction of the legal landscape in the long term, as future presidents from the other party are likely to appoint justices with the opposite viewpoints. Thus in order to achieve a lasting impact on the law, presidents must appoint justices who are also strategic long-term thinkers, and who get along well with their colleagues. Such justices will not press for short-term (often Pyrrhic) victories that antagonize fellow justices and encourage an unleashing of political counterforces. Rather, they press for slow, incremental change that tends to have a more lasting influence on the legal landscape in the long run. George W. Bush’s appointment of John Roberts (and to a lesser degree, Samuel Alito) offers a recognition of long-term thinking in Supreme Court appointment politics that previous presidents lacked, and thus may offer an increased hope of success in transforming the law in a more conservative direction over the long run.

INTRODUCTION: FUTURE THINKING ON THE HIGH COURT Today it is widely accepted among social scientists who study the U.S. Supreme Court that the political attitudes or ideologies of the justices are the single most important determinants of their individual high court votes.1 Accordingly, modern administrations have addressed high Court vacancies that arise as important opportunities that demand fact-finding missions which might determine the ideology of potential nominees. Administration officials draw on many sources to render such judgments, including (but not limited to): (1) the individual’s past judicial decisions (if he or she has served on the bench before); (2)

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transcripts of the individual’s speeches and/or public declarations; (3) law review articles and other writings by the individual; (4) the individual’s past political activities and decisions that may give some indication of his or her views on judicial issues; and (5) the opinions and speculation of the nominee’s friends, acquaintances and co-workers, among others. Considered together, these myriad sources offer a prediction of the candidate’s decisionmaking propensities that is in fact quite reliable. In truth, the justices’ perceived ideology (as determined by these various factors) has “provided a remarkably good predictor of how they will vote on the Court.”2 Indeed, those exceptional instances where Justices have disappointed their appointing president’s expectations tend to arise only when the president did not engage in a thorough search of the nominee’s past, or where the president and his aides ignored clear warning signs in order to fulfill alternative objectives in the appointment process such as the fulfillment of a promise, or the desire to ensure the smoothest possible confirmation process. Of course to assess a nominee’s potential contribution to the Court’s overall decisionmaking outcomes, and ultimately to the legal landscape as a whole, one must consider additional factors beyond simply how the Justice casts his or her individual votes in specific cases. For example, more than a half century ago, David Danelski pioneered research on the ways that chief justices (as well as strategically minded associate justices) can exert social and task leadership both to keep the court running efficiently, as well as to influence their colleagues’ actual votes.3 Other scholars have determined that basic principles of collegiality may effect these calculations as well, as some justices may be susceptible to the tactics of persuasion employed by their colleagues, whether in written opinions that take account of their views, or in the form of small conversations that occur in the hallway or in judicial chambers.4 In sum, justices sit on a collegial court of nine members, and to assume that justices vote in their own ideological silos with little regard for their brethren (or sistren) defies what we know about the court anecdotally, and ignores common sense. Stated simply, some justices are more capable (whether by dint of personality or by clever strategic activities) of persuading fence-sitting justices than others, and their overall value to the appointing president (and the constituencies most interested in the future of the court) may be thought to rise accordingly. Do modern presidents and their administrations account for these additional factors when choosing Supreme Court nominees in the judicial selection process? In fact, few presidents think in such terms when entrusted with a high Court vacancy. The recent death of Justice Antonin Scalia after nearly three decades on the bench brought to the forefront many stories about the late justice’s colorful career, including the curious fact that one of the more conservative justices in the history of the court was confirmed in 1986 by an overwhelming 98-0 Senate vote. Less discussed in the media’s assessment of Scalia was the Reagan Administration’s judicial selection process that led to his nomination in the first place. Attorney General Edwin Meese, heading the administration’s effort to fill the chief justiceship vacated by Warren Burger, favored promoting the high Court’s most conservative Associate Justice, William Rehnquist, to the vacated center seat, and then placing a die-hard conservative nominee into the seat thereby vacated by Rehnquist. After conducting extensive research on the political attitudes and ideologies of literally hundreds of potential Supreme Court nominees, Meese ultimately settled on two U.S. Court of appeals judges as finalists: Judge Robert Bork, 58, and Judge Antonin Scalia, 50, of the D.C. Circuit. Though both justices received rave reviews from Meese’s aides, he eventually favored Scalia, both because

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of his age (Meese could not know the administration would have another vacancy to fill in 1987) and because a thorough search of Scalia’s judicial record by Justice Department attorneys had uncovered “not a single opinion in which either the result or the ground of decision seemed problematic from a conservative point of view.”5 Thus while Bork was a favorite among conservatives, none could seriously fault the selection of Scalia on ideological grounds. Moreover, Bork’s peripheral involvement in the 12-year old Watergate scandal (as solicitor general he had dutifully executed Nixon’s order to fire the Watergate special prosecutor) might raise confirmation issues, even with a Republican Senate in control of the hearings.6 Swapping the conservative Burger for an even more ideologically committed conservative in Scalia would surely have some impact on the high court’s decisionmaking. Consider that while Burger had been a reliable conservative on most issues, he had nevertheless voted with the majority in Roe v. Wade, albeit in a misguided attempt to lead the court towards a more moderate outcome in favor of abortion rights. No matter his motives, Chief Justice Burger had contributed to a Supreme Court opinion that would become infamous in conservative legal circles for decades afterwards. Still, would Scalia have an impact beyond his offering a reliably conservative vote in nearly every case? In particular, would he build a long-term conservative majority by persuading fence-sitters and moderates to join him? In point of fact, at the time of Scalia’s appointment there were signs that his influence on other court members might be limited indeed. According to a 1985 issue of American Lawyer published a full year prior to Burger’s retirement announcement, Judge Scalia had actually alienated some fellow judges during his time on the D.C. Circuit, refusing to defer to far more senior colleagues on numerous matters both large and small. Rather, he “made it clear from the start that he didn’t intend to ease into the job,” rejecting out of hand his colleagues’ attempts to forge consensus even in minor, non-controversial cases.7 Associate White House Counsel Lee Lieberman noted in one telling memo to her superiors that Scalia had stated multiple times on the record that even as a lower court judge he did not feel at all bound by the Supreme Court’s rulings on separation of church and state. Meese may well have favored such defiance by a prospective Justice; as part of the administration’s campaign to transform the constitutional landscape in a more conservative direction, he was counting on his newly appointed Justices to discard unfavorable precedents.8 Yet such a brazen attitude from Scalia might well alienate the very colleagues who had articulated many of those precedents in the first place. Lieberman’s analysis proved remarkably prophetic. While Scalia provided a steadfast conservative vote on most issues to come before the Court, the justice’s propensity to use sharp and stinging language in berating the views of colleagues9 (including moderates like Justice O’Connor who held the balance of power on the high Court) often left his opinions sidelined either as concurrences or – in some notable cases – as frustrated dissents. In case after case Scalia refused to dial back his language or principles to forge a majority. Clearly the constitutional landscape moved in a more conservative direction during Scalia’s tenure. Yet while mourning Scalia’s passing in early 2016, social conservatives were left to wonder just how much more conservative that landscape would have become if Justice Scalia had offered a more collegiate presence on the high Court. In July of 2010, U.S. Senator Lindsay Graham (R.-S.C.), an outspoken social conservative, cast his vote in favor of confirming President Obama’s second nominee for the

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U.S. Supreme Court, Elana Kagan. In doing so, he gave voice to a fundamental (if rarely stated) truth about prospective Justices: that ideology plays a role in the president’s choice of a nominee, and that it similarly plays a role in the justice’s decisionmaking once he or she arrives on the high Court. Senator Graham specifically declared that while he himself would not have chosen Kagan because he disagrees with her more liberal views, “President Obama won … the Constitution, in my view, puts an obligation on me not to replace my judgment for his.”10 A nominee’s future voting record is never assured, but it is often predictable to a great degree. In most cases the question is no longer whether the nominee will vote in a certain way on cases already known, but whether the justice has the extra capacity to bring along moderates or undecideds on specific cases, and thus essentially multiply his or her influence on the law. President George W. Bush’s nominees must be judged by this standard as well. These alternate considerations for choosing Justices – collegiality, the capacity to negotiate, and long-term strategic thinking – rarely garner much discussion when a vacancy arises, as avid court watchers focus primarily on the immediate results to be expected: Will cases coming before the court in the short term be decided differently? By not asking about how a new Justice will relate to his colleagues in the manner suggested above, these assessments make the same mistake that presidents and their advisors do. President George W. Bush offers something of a contrast to such short-sighted evaluations, shaping his legacy in especially significant ways.

HOW TO BUILD A SUPREME COURT LEGACY: NOTES TO A THEORY A president’s ability to significantly impact Supreme Court decisionmaking – and with it, the legal landscape as a whole – depends on numerous factors listed below. To be sure, only some of these are within the president’s actual control. Still, if even one of these factors is absent, a president may have a difficult time making its mark on Supreme Court decisionmaking beyond achieving a handful of short-term, impermanent gains. The conditions for presidential success are:

Multiple Supreme Court Vacancies Arising During a President’s Tenure During the course of any one administration, numerous circumstances must align to offer a president the opportunity to significantly influence the Supreme Court. Simply having one or more Supreme Court vacancies to fill does not itself grant the opportunity to transform the constitutional landscape, but it is a necessary first step to any discussion of presidential legacies. While the Supreme Court produces a vacancy on average every 2.2 years, the timing for such vacancies can be quite unpredictable, and three presidents during the past century (Franklin D. Roosevelt, Jimmy Carter and George W. Bush) went their respective first terms as president without receiving the opportunity to fill even one high Court vacancy. (Denied reelection, Carter was the only post-Civil War president who failed to nominate even one Supreme Court Justice during his entire presidency). Bill Clinton and Barack Obama appointed two justices each before midterm elections interrupted their first-term legislative agendas; Of the two, only Obama had the chance to name a third justice, and (at the time of

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this writing) election-year politics and partisan Senate opposition conspired to stop his third nomination in its tracks, at least until after Election Day 2016.

Presidential Articulation of a Clear Ideological Agenda for the High Court Not all presidents care passionately about the future ideological direction of the court; some measure success based on their ability to prevent such appointment politics from interfering with other, more critical elements of their respective agendas. Certainly that was the case with President John F. Kennedy, whose ambivalence about the Supreme Court’s agenda led him to seek nominees who would not offend Senators needed to pass the administration’s program of tax cuts. Mark Silverstein has identified 1968 as a watershed moment in Supreme Court appointment politics as the “politics of acquiescence” thereafter gave way to the “politics of confrontation.”11 Nearly all presidents since then have articulated agendas for the court that buttressed their own political and ideological agendas. Thus, Richard Nixon wanted the Court to pursue a “law and order” agenda; in addition to his commitment to more robust states’ rights, Reagan utilized judicial nominations to pursue an even broader social agenda that favored religion in schools, restricted abortion rights, and opposition to any efforts to expand the rights of the accused.12 Perhaps the lone exception in this modern era was President Gerald Ford, who expressed interest in nominating a justice based on his competence, rather than his ideology.13

Presidential Commitment to Expend Administration Resources on Every Phase of the Supreme Court Appointment Process Even if a vacancy arises, the President must possess (and be willing to spend) his limited political capital to select nominees who align with his own political views, and then shepherd those nominees successfully through the confirmation process. Bill Clinton’s priorities in 1993 lay elsewhere, to his economic stimulus measures and the desire for health care reform. Thus Clinton proved unwilling to “swing for the fences” by naming an extreme ideologue with a clear track record of bold ideological decisionmaking. By contrast, Lyndon Johnson in 1967 nominated a high-profile civil rights activist (Thurgood Marshall); Reagan in 1987 appointed the judicial conservatives’ most high-profile torch-bearer (Robert Bork); and George H.W. Bush named the controversial former head of the EEOC (Clarence Thomas) to the high Court in 1991. Often boldness is a matter of degree, as the successful confirmation of some nominees require more than the average expenditure of political capital to get them through, though not so much as to undermine the rest of the president’s agenda. (President Obama’s nomination of Elena Kagan in 2010 fits that category). Regardless, presidents know there is a price to pay when nominating transparent ideologues to the high court.

Cohesive Presidential “Bloc Voting” To Secure Judicial Outcomes A president’s success in naming one bold ideologue to the high court may be undermined by that same president’s subsequent appointment who casts his or her vote in the opposite

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direction. Thus to assess presidential success in the appointment process, one must examine the degree to which presidential appointees form a cohesive bloc rather than a divided bloc. For example, with some exceptions the justices named by Presidents Reagan and Nixon generally voted in support of their appointing president’s ideological goals; by contrast, President Eisenhower’s bloc of five justices was quite often at odds, with Justice William Brennan and Chief Justice Earl Warren pulling in an entirely different direction than the rest. Consequently, President Eisenhower’s impact on the court was quite limited.14 Those presidents fortunate enough to name multiple justices to the high Court must therefore be attentive to the possibility that the justices will pull in opposite directions, thereby nullifying the president’s actual influence on final votes.

Long-Term Political Trends Support the President’s Views on Legal and Constitutional Issues Whether the president’s ideological views prevail in history depend to a great degree on whether he or she is followed in office by a president who is equally determined to reverse what that president accomplished. That especially holds true in the case of Supreme Court appointments. Is the president’s ideology – as manifested in his selection of Supreme Court Justices – doomed to be undermined by competing majorities? In The Politics Presidents Make, Professor Stephen Skorownek labels some presidents as disjunctive to the extent that they represent the last affiliated presidents in a failing political order.15 So-called preemptive presidents have a similar problem: By taking office in the face of a political order that is actually opposed to their political views (as compared to one that is barely hanging onto those views), they too stand little chance of seeing those views prevail in the long run. Presidents in either of these categories may be running uphill in the fight to transform the constitutional landscape.

The President’s Supreme Court Nominees Focus on Long-Term, Rather Than Short-Term Battles over Constitutional Meaning This final factor is critically important, though often ignored by the executive in the nomination process. Consider the case of Justice Scalia. As was noted above, this principled conservative met every expectation for judicial decisionmaking outcomes. Yet his actual impact on the court (and thus by implication, President Ronald Reagan’s impact) was undermined by his consistent refusal to engage with colleagues and find common ground that might attract moderate members to his cause in the long term. As Justice Scalia was unwilling to lay the strategic foundations for long term change, he often ended up a bitter dissenter (as well as author of concurrences) rather than as a ground-breaking justice who forced a majority. The late 20th century court in particular was littered with short-term thinking justices like this: Justices William O. Douglas, Hugo Black and Thurgood Marshall, among others. ***

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In his landmark book of half a century ago, Elements of Judicial Strategy (1964), Walter Murphy noted that the typical Justice “finds it easier to compromise with a colleague who has shown him respect and consideration …”16 Professors Lee Epstein and Jack Knight take this a step further, arguing that justices who are “forward-thinking actors” tend to think prospectively before they hear a case.17 Indeed, they find evidence of such thinking when Justices vote for aggressive grants of cert (when they believe they will win on the merits) or defensive denials (when they believe they will lose on the merits). This type of forward thinking may also occur in votes on the merits: a Justice may vote modestly or even seemingly against his own political or policy views in the short term out of a belief that it will benefit his policy views to a greater degree in the long run. This form of Supreme Court is based on a number of different assumptions made by the individual justice in question:   

That by reaching out to moderates, he/she can build more lasting and permanent doctrines favorable to his/her interests; That by adopting a more incremental approach to judicial decisionmaking, he/she can build more lasting and permanent doctrines consistent with his/her interests; That certain short-term victories can generate political backlash that threatens the prestige of the court, and thus undermines future decisionmaking that is far more likely to succeed; Etc.

Consider three of the most famous Supreme Court decisions in history, each of which rested on a Supreme Court justices (or justices) sacrificing short-term victories for longerterm gains:

Chief Justice John Marshall in Marbury v. Madison (1803) In perhaps the most famous case in Supreme Court history, Chief Justice John Marshall and his fellow Federalist-party appointees on the high Court ruled against the Federalist Party’s own judicial appointees, denying them duly appointed commissions. By doing so Marshall gave a political and legal victory to the hated opposition party Republicans led by President Thomas Jefferson and Secretary of State James Madison. But the short-term defeat for the Federalists came at the expense of those seeking to reign in the power of the federal government: Marshall ruled that the commissions were valid, but the means for ordering them to be delivered (the issuing of a writ of mandamus by the high court within its original jurisdiction) were unconstitutional. By invalidating a federal statute that on its face granted the court that power, Chief Justice Marshall engaged in the most classic form of forward thinking: he ruled against his party’s immediate interests to arm the U.S. Supreme Court with the power of judicial review. The Court would use that power only sparingly, but quite dramatically, during the century that followed. Associate Justice Stanley Reed in Brown v. Board of Education (1954) When President Franklin Roosevelt promoted solicitor general Stanley Reed to the high Court in 1938, he expected the Kentuckian who had served in his administration from the outset would become a reliable defender of the New Deal. Yet when the question of desegregation came before the Court in the early 1950’s, Reed’s credentials as a liberal progressive were suspect. In Simple Justice, Richard Kluger reports that Reed was planning to

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dissent in Brown v. Board of Ed, consistent with his views on race. “I am not unaware of the hard struggle this involved in the conscience of your mind,” Felix Frankfurter wrote to him privately.18 But Reed suppressed his views and voted with the majority to make the final opinion anonymous, as a way of inspiring a measure of “respect and obedience” that even one dissent might otherwise undermine. By girding the court against even more backlash from his fellow southerners in a case that was already lost, Reed stored up the court’s capital to allow it to defend future doctrines still in play.

Chief Justice William Rehnquist in Morrison v. Olson (1988) Arriving on the Supreme Court directly from his position as deputy attorney general in the Nixon Administration’s Justice Department, few justices could boast of a more sincere commitment to robust executive authority than William Rehnquist. In speeches and dissents written early in his tenure, Rehnquist advocated for a fierce commitment to the separation of powers that would have, for example, denied a federal agency authority over a former president’s papers and tape recordings. And yet in Morrison v. Olson (1988), with all eyes on the Court, Chief Justice Rehnquist drafted a majority opinion allowing encroachments onto executive authority in the form of a prohibition against the president firing an independent counsel or prosecutor. The decision hit constitutional conservatives especially hard, including the lone dissenter, Justice Antonin Scalia. Nearly 30 years later, in a 2013 interview, Justice Scalia remarked that the decision was the most wrenching because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.19

Perhaps the chief justice was hoping to save political capital for the Court, which would have been mercilessly attacked for interfering with politics had it done otherwise. On this point the two most conservative appointees of Reagan – Rehnquist and Scalia -- could not have been further apart. What are the measures of such short-term, forward judicial thinking? Table 1 below depicts some of the evidence that may be used to detect future thinking on the part of Supreme Court Justices, and their possible motivations for doing so: Table 1. Evidence of potential for Justices’ forward thinking that maximized impact Evidence offered

Sources of evidence

1. Fidelity to precedent

Past confirmation hearings; legal writings and opinions Interviews with past colleagues; anecdotal evidence Biography

2. Positive judicial relations 3. Extensive political experience 4. Long-term vision for court/law 5. Aversion to clear doctrinal philosophies (originalism, legislative history, etc.)

Reaching out to moderates?   



Off-the-bench writings, speeches, etc. Off the bench writing, speeches, etc.

Protecting court prestige/status? 



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Table 2 looks at evidence of the opposite pattern, with Justices refusing to engage in such “future thinking” forms of judicial decisionmaking: Table 2. Evidence of limitations on Justices’ future thinking Evidence offered

Sources of evidence

1. Willingness to override disfavored precedents 2. Negative or non-existent judicial relations 3. Career jurist thinking 4. Case-by-case, short-term approach to judging 5. Determined commitment to doctrinal or philosophies

Past confirmation hearings; legal writings and opinions Interviews with past colleagues; anecdotal evidence Biography Off-the-bench writings, speeches, etc. Off-the-bench writings, speeches, etc.

Closed to moderates? 

Court prestige irrelevant? 

  



As these factors come into play in assessing the Court, they tend to shed new light on our assessment of the president’s overall impact on the court. Short-term victories by a president’s judicial appointees may appear less monumental when viewed in the longer perspective of history. Still, the Justices who have focused on and mastered this long game may have the last laugh, as will the president who successfully appointed them.

APPOINTMENT MISTAKES AND THE SEARCH FOR LONG-TERM SUCCESS When Justice David Souter retired from the bench in 2009, assessments of his tenure were in general agreement: Souter was no conservative ideologue. Rather, he was depicted as a “typical, old-fashioned Yankee Republican” – in short, a throwback to the Republican party’s ideology that had thrived just a half century earlier. For the same reason, he had proven a sore disappointment to the many social conservatives who dutifully supported his nomination 19 years earlier. Republicans had apparently whiffed as well with Harry Blackmun, though in that case President Nixon’s failure to appoint a more conservative justice was at least partially explained by political reality (his first two attempts to fill the vacancy had failed miserably; Blackmun was Nixon’s third choice). Still, there are mild failures and there are colossal failures, and Blackmun arguably fits the latter description as he went on to become a stalwart liberal on the court, famous for having authored the most notorious opinion of the last half century in the minds of many conservatives: Roe v. Wade (1973). The specters of Souter and Blackmun loomed large over President George W. Bush as he and his advisors contemplated potential nominees in 2005. When Sandra Day O’Connor announced her intention to retire on July 1, 2005, President Bush was handed the opportunity to replace a so-called “swing justice” on the Court with a Justice far more likely to vote conservatively down the line. In truth, the selections of Souter and Blackmun were both the products of persistent lobbying by mentors and advocates close to the respective administration that made them nominees in the first place. After his first two nominees to fill Abe Fortas’ vacated seat went down to defeat in the Senate, Chief Justice Warren Burger

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personally vouched for Harry Blackmun as the solution to Nixon’s confirmation problems. Two decades later, President George H.W. Bush feared a political confirmation battle as the 1990 midterm elections approached; White House Chief of Staff John Sununu vouched for the conservative views of his fellow New Hampshire resident, former state supreme court justice (and current First Circuit appeals judge) David Souter. Both presidents relied on these high-level endorsements as proxies for the serious research that would normally prevail at such critical moments. The research available to both presidents and their administrations offered more than enough evidence that these two nominees might not be rock-solid and reliable conservatives in their approaches to judicial decisionmaking. As a judge on the U.S. Court of Appeals for the Eighth Circuit, Blackmun had consistently upheld district court orders demanding that school officials in Arkansas move forward quickly and deliberately with desegregation measures. In Jones v. Alfred Mayer, 379 F.2d 33 (8th Cir. 1967), a landmark civil rights case pitting a black couple against a subdivision developer, he had ruled reluctantly against the plaintiffs, confessing that while he was tempted to rule in the couple’s favor, the high Court had not authorized such a move quite yet. And even while forging a more standard conservative line in law enforcement matters, he was prepared to draw the line against harsh treatment of prisoners. Thus Blackmun was of a judicial mind that was not nearly so conservative as were many of Nixon’s most strident supporters. Though Souter was often termed the “stealth candidate” for his sparse judicial record, he spoke admiringly of Justice John Marshall Harlan, a restrained conservative by any measure, during his confirmation hearings. Senator Warren Rudman, who fought for Souter, later admitted that he and his fellow conservatives suspected Souter would not lead the court in liberalism, though he would not vote to overturn liberal precedents either. The age of so-called “stealth” or “surprise” nominee appears gone forever. The last quarter century has witnessed the spectacular growth of the Internet and the rise of wealthy interest groups willing to expend considerable resources to investigate any name that appears on lists of potential nominees. Given these realities, it is hard to imagine a controversial speech or writing escaping the notice of the White House prior to formal submission of that name to the U.S. Senate. G. Harrold Carswell’s controversial support for white supremacy during his unsuccessful Georgia legislative bid in 1948 somehow caught the Nixon Administration by surprise in 1970; that could never happen in the age of the Internet. This relative “open book” on nominees and potential nominees has had an even more significant impact on the process: any nominee experienced enough to be considered “qualified” for the high Court will by definition have enough material in his or her past to determine how the justice is likely to vote on all of the most pressing issues of the day. Thus, assuming those issues don’t change dramatically, a president interested in pursuing ideological goals with his Supreme Court appointments will possess all the information he needs to guarantee success in this regard. So long as an ideologically-driven president puts his administration’s resources behind the appointment process, a “mistake of law” (i.e., the appointment of a Justice who fails to vote as hoped for) is difficult to imagine. The record bears this out. Since 1985, successfully appointed justices have generally performed up to, if not considerably beyond the ideological hopes of the presidents who appointed them. During these past three decades Republican presidents have appointed seven justices (Scalia, Rehnquist, Kennedy, Thomas, Souter, Roberts and Alito) and over the same span Democratic Presidents appointed four justices (Ginsberg, Breyer, Sotomayor and

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Kagan). Of the seven justices appointed by Republicans, five (Rehnquist, Roberts, Alito, Scalia and Thomas) stand among the six most conservative Justices in Supreme Court history (the databases that measure justices this way date back to 1937).20 As for the two others, Kennedy lands in the top 10 as well, while Souter is the lone outlier. As for the Democrat appointees, Ginsburg and Breyer rate among the most liberal justices in history as judged by that same scale. And while it is too early to judge the Obama appointees’ place in history, court observers are quick to note that Justices Sotomayor and Kagan have already established themselves as visionaries in meting out a form of “liberal justice” …. albeit from different approaches and perspectives.21 If presidents can confidently choose justices who will line up in ideologically predictable (and in all but one case, preferred) ways, the central question remains as to whether all such justices are likely to impact the constitutional landscape to similar degrees. The simple answer is “no”: based on the analysis above, some justices cast their votes in accordance with ideological principles and express little regard for long-term constitutional development, while others approach judicial decisionmaking (at least with regard to constitutional issues) as a long-term battle over constitutional meaning. Lasting, transformational change can only come with judges whose influence extends beyond their own personal votes. A president interested in extending his or her influence accordingly must utilize an appointment process that reflects those goals. Republican presidents – perhaps spooked by the Blackmun and Souter disappointments – have been especially attentive to the long term. The constitutional scholar Mark Tushnet stated this in clear terms: Republican Presidents have been interested in something beyond today’s constitutional controversies. They hope for reliability over the long term, articulating conservatism in 2010, 2020 and 2030…”22

Of course success in the long-term demands more than just voting according to attitudes – it demands strategic voting in the short term as well. President Bush’s legacy in this regard depends on his choice of justices – and in particular a chief justice – who is attuned to precisely that result.

GEORGE W. BUSH SEEKS TO MAXIMIZE HIS LEGACY Was President George W. Bush determined to choose Supreme Court Justices who would transform the constitutional landscape in the long term? Or like so many of predecessors, was the appointment process an opportunity to pursue immediate, short-term political objectives, perhaps by appeasing valued constituencies? As a presidential candidate in the spring of 2000, then-Governor George W. Bush established his own political baseline for the Supreme Court when -- in response to questions about his approach to Supreme Court appointments – he repeated to the media and in speeches that he would appoint Justices like Antonin Scalia and Clarence Thomas to high Court vacancies that arose during his tenure. Compared to past presidential candidates, Bush was very clear in this regard, and certainly his constituents believed him. Democratic Senators never forgot that promise: Senator Charles Schumer (D.-N.Y.), a senior member of

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the Senate Judiciary Committee assumed that “if he had been in a stronger position [during the summer of 2005] he would have at least nominated Scalia to be chief justice.”23 Yet Bush’s only two vacancies occurred early in his second term – half a decade after he had made that original campaign promise. When Sandra Day O’Connor announced her retirement in June of 2005, President Bush explored the possibility of naming a justice who could transform the court not just with his votes – but with political guile, strategic collegiality and an occasional willingness to compromise as well. In seeking to raise those issues, the president surprised his advisors by taking a personal interest in the creation of an initial list of candidates: he told them he “wanted to take the personal measure of any nominee to the court.” High on the shortlist to replace Sandra Day O’Connor was Fourth Circuit jurist J. Michael Luttig, who in various public statements on and off the bench had expressed a sincere “responsibility to faithfully follow past Supreme Court opinions.” If taken seriously, such an approach placed Luttig far closer to Sandra Day O’Connor than either Scalia or Thomas.24 The White House also considered Attorney General Alberto Gonzales for the slot. A former Texas Supreme Court Justice appointed by then-Governor Bush, then-Judge Gonzales had refused in In re Jane Doe 525 to construe a parental notification law so narrowly as to eliminate the possibility of judicial bypasses for those minors seeking an abortion. Conservatives far preferred Luttig to Gonzales, though neither had the hold on conservative hopes and desires that was invoked when President Bush had mentioned Scalia and Thomas five years earlier. Eventually Bush eliminated Gonzales from contention, if only to keep him at the Justice Department a bit longer. Along with Roberts and Luttig, the administration seriously considered two circuit judges, J. Harvey Wilkinson and Edith Jones, as well as the solicitor general, Paul Clement. Of the five, Luttig and Jones were perhaps the most ardent conservatives within the group. President Bush himself interviewed all five candidates in his residence to take a private measure of their personalities and character. By all accounts the president ultimately relied as much on chemistry and intuition as he did on policy and legal intellect in choosing D.C. Circuit Judge John Roberts to take O’Connor’s seat. Why did he choose Roberts, a judge with a judicial track record that extended barely two years? Roberts was the most well-liked of the bunch: “friends, colleagues and adversaries dating to his college days have described the judge as always bright without being overbearing or overly aggressive.”26 The chairman of Roberts’ former law firm noted that while enjoying unrivaled success as a Supreme Court litigator, “he doesn’t take himself too seriously and is always careful to acknowledge the accomplishments of other people.”27 More significantly, Roberts’ congenial personality apparently extended into his judicial relations as well, as Roberts expressed reluctance to sweep away precedents drafted and defended by those who would become his colleagues. During Roberts’ 2003 appeals court confirmation hearings, he had pronounced that “Roe v. Wade is the settled law of the land…There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.” The White House was as confident in Roberts’ real views on the matter as they were with any of the other Supreme Court finalists. Yet Roberts’ passionate defense of stare decisis worked in his favor rather than against him during the summer of 2005. When Chief justice Rehnquist died quite suddenly at his home on Labor Day weekend in 2005, President Bush moved quickly to shift Roberts’ nomination over to the vacant chief justiceship. That left O’Connor’s vacancy open once again, and President Bush moved

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quickly to fill it. Yet instead of returning to the short lists of candidates in circulation, President Bush short-circuited the process by naming a candidate who he was perhaps most comfortable with on a personal level: White House Counsel Harriet Miers, the very official who Bush had named to head the search for O’Connor’s replacement in the first place. It was a gross misreading of the political environment, which was dominated by three overriding factors at that time: 

 

Because replacing Rehnquist with a fellow conservative as chief justice had not altered the ideological composition of the court, finding a replacement for O’Connor, a quintessential swing vote, carried with it added importance for conservatives; Barely 15 years after Souter’s nomination, the risks of naming a stealth candidate like Miers remained all too real for many conservatives; and President Bush’s approval rating in September 2005 had dropped below 50% for the first time since his successful reelection; meanwhile, the fiasco surrounding Bush’s handling of Hurricane Katrina promised to erode whatever capital he had left even further.

Any one of these factors alone might have scuttled the Miers nomination, but with all three in play her nomination never had a chance. In fact it was Senate conservatives from Bush’s own party who convinced the White House to withdraw the nomination on October 27, 2005, even before confirmation hearings were initiated. That Miers’ candidacy could have bubbled up in the first place offers a testament to the relative importance President Bush placed on Supreme Court justices with political skills; those skills meant nothing, however, absent a foundation of clear and documented conservatism. President Bush’s third Supreme Court nominee, Judge Samuel Alito of the U.S. Court of Appeals for the Third Circuit, emerged from a badly battered and embarrassed White House that was compelled to move quickly in the wake of Miers’ withdrawal. Alito had been under consideration for a Supreme Court vacancy dating back to April of 2005, and he possessed two critical experiences to establish his Republican bona fides: a track record of 16 years judging on the court of appeals; and four years working as a lawyer in the Reagan Administration, where he advocated on behalf of conservative social positions. Finally, the comparisons with Scalia, who remained the darling of so many conservatives, were unmistakable: both men were Italian-Americans, both were reliable conservative votes, and to some their names even sounded the same. President Bush nominated Alito to fill O’Connor’s slot just four days after Miers’ withdrawal.

ASSESSING THE BUSH LEGACY IN SUPREME COURT SELECTIONS If President George W. Bush’s definition of a successful presidency incorporates a studious avoidance of the mistakes made by his father, success was tangible in a number of different respects during the Bush 43 presidency. Unlike his father, George W. Bush won his bid for re-election. Unlike his father, President Bush’s war in Iraq included the toppling of a dictator and the drive to establish a western-style democracy in his place. And in the context of Supreme Court appointments, the improvement on his father’s legacy was just as clear-cut:

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Instead of appointing two justices whose votes would in effect cancel each other out, George W. Bush’s two Justices moved the court sharply to the right, even though they replaced two justices appointed by Republican Presidents. Yet any fair evaluation of President’s Bush’s Supreme Court appointments must also recognize that he accomplished considerably more with his two Supreme Court appointments than their mere votes might indicate. President Bush’s key contribution came through the appointment of the new Chief Justice of the United States, John Roberts. A student of Supreme Court history, Roberts clearly admired Chief Justice John Marshall and heaped praise on his methods for leading the Court in the early republic. According to George Washington University Law Professor Jeffrey Rosen, Roberts knew Marshall’s success was a reflection of his temperament, as “he gave everyone the benefit of a doubt, he approached everyone as a friend, the assumption was that this is someone I’m going to like unless proven otherwise.”28 Roberts himself spoke of Marshall immediately after his appointment as chief justice: That fact that his fellow Justices trusted Marshall, in particular, allowed him to bring the Court together. That lack of pretense, that openness and general trustworthiness were very important personality traits in Marshall’s success.29

Roberts called his own decision to embrace Marshall’s vision a “reaction to the personalization of judicial politics.” Perhaps he meant to refer to the “negative personalization of judicial politics,” as Roberts’ influence was magnified by his own positive personalization of opinions and decisionmaking. Thus the Roberts pick may eventually have an outsized impact on the constitutional landscape. Mark Tushnet made this point in In the Balance (2013), “What the judge pickers were looking for was someone whose approach to constitutional interpretation was likely over the long run to generate results consistent with the views of important constituencies.” Consider at least three cases that offer evidence of Roberts laying the groundwork for more lasting conservative change to the constitutional landscape in the long run: 1) NFIB v. Sebelius, 567 U.S. ___ (2012). With President Obama’s landmark legislative accomplishment in danger, Chief Justice Roberts dealt Republicans a stinging defeat when he voted to uphold the constitutionality of Obamacare through a broader reading of Congress’s Article I tax and spending power. Though the decision shocked court watchers at the time, it was in fact consistent with the chief justice’s general reluctance to place the Court’s status and prestige at issue by supporting extreme political stances. At the same time, Roberts’ opinion placed advocates of expansive federal power at a disadvantage going forward. The Obama administration’s former acting solicitor general captured the feelings of many when he called the decision a “pyrrhic victory” as “the fancy footwork that the Court employed to view [the Medicaid expansion] as coercive could come back in later cases to haunt the federal government.”30 Consider previous instances in which Congress had used its spending power to tell schools and universities that they had to accept privacy regulations if – as inevitably occurred—they accepted federal education aid. Were these statutes now unconstitutional after the Obama case? Thus

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in saving Obamacare, Roberts’ opinion invited numerous other lawsuits to test these new, more stringent limits on federal authority. 2) Parents Involved in Community Schools v. Seattle, 551 U.S. 701 (2007). In Parents Involved, the chief justice (joined by the other four conservative justices) engaged in the type of give-and-take likely to frustrate conservative constituencies in the short run. Conservative opponents of affirmative action hoped that Parents Involved would be the grand vehicle to sweep away the last vestiges of constitutionally valid affirmative action. But to do so, the Court would have to overrule Grutter v. Bollinger, 539 U.S. 306 (2003), the four-year old precedent that had upheld a limited affirmative action plan at the University of Michigan Law School. For the chief justice, abandoning a brand new precedent simply because personnel changes allowed it (the author of the opinion, Justice O’Connor had retired in the interim) was perhaps a bridge too far. Instead, Chief Justice Roberts achieved his desired result by striking down a student assignment plan based on individualized racial classifications. In the process, he made the path to constitutionally valid affirmative action plans that much more difficult to navigate. And yet the Grutter precedent – battered and bruised – remained in place. 3) Gonzales v. Carhart, 550 U.S. 124 (2007). Conservatives were confident that both of President Bush’s Supreme Court appointments opposed Roe v. Wade, 410 U.S. 113 (1973) and the substantive right to abortion. A central question remained, however: Would they join Justices Scalia and Thomas in seeking to outright overrule the controversial precedent? Or would they comfortably apply the “undue burden test” from Planned Parenthood v. Casey, 505 U.S. 833 (1992), which had served to undermine the core privacy right in Roe v. Wade? The answer became clear in 2007, when the Supreme Court upheld the federal Partial Birth Abortion Statute of 2003. Justice Kennedy, one of three justices to sign the controlling opinion in Casey, authored the 2007 opinion that continued the slow but incremental march away from Roe v. Wade.

CONCLUSION How should Supreme Court Justices address disfavored precedents? From a political standpoint, the answer seems obvious: Justices opposed in principle to a specific precedent should overrule that precedent, offering a ready demonstration of the court’s power as well as providing relative clarity to the state of the doctrine. Yet the disadvantages of such an approach may be just as obvious to everyone, save the interest groups and politicians who are forever looking for a quick fix. What begins as a demonstration of judicial power can result in an emasculation of that same power if the court were to swing back and forth in rescuing and dismantling precedents based primarily on changes in high court personnel. Indeed, the court’s status and prestige may suffer if it is revealed to be the essentially political body responding to election returns in its treatment of precedents. Moreover, the reversal of precedents does not clarify the state of the law. Indeed, the jurisprudence that arises in the absence of well-known (and sometimes well-established) precedents may be shaped during this period, unless of course the courts and consumers of the law are confident the precedent

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has been permanently abandoned. Those who seek to make the grand and dramatic gesture of outright overruling a long-standing, controversial precedent must be aware of the indirect consequences such actions may invite, including the scorn of colleagues who may have authored the controversial precedent in question. Future-thinking Justices understand this dynamic instinctively, and seek victories for their policy views that are likely to win in the long run, rather than just in the short run. They know that slow and incremental change (like death by a thousand cuts) be far more effective than the grand gestures that invite backlash, frustration, and a potential war on the bench with uncertain outcomes and threats to the court’s standing. By moving more slowly and incrementally – and by sacrificing desirable outcomes in single cases on occasion -- they are able to sidestep accusations of judicial activism, while at the same time leaving controversial precedents in place to suffer continued blows from the opposition. They work with and respect the views of their colleagues, rather than viewing them as obstacles to be overcome. The nuanced undermining of Supreme Court precedents -- as compared to the simpler and more straightforward act of overruling them -- creates long-term momentum towards more lasting changes in the law. Chief Justice Roberts (and to some degree Justice Samuel Alito as well) have taken this approach in several high profile cases, frustrating conservatives along the way. Whether they have the last laugh remains to be seen. But given the staying power of Supreme Court Justices in the modern age, they are far more likely to be around when the final judgment is made then will be their short-term thinking opponents. And if they are successful, some amount of credit must go to President George W. Bush, who exited the scene in 2009, just as their long journey forward was barely beginning.

ENDNOTES 1

Saul Brenner and Joseph Whitmyer, Strategy on the United States Supreme Court (Cambridge: Cambridge University Press, 2009), p 11. For a comprehensive statement and defense of this position, see Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model revisited. (Cambridge: Cambridge University Press), 2002. 2 Lee Epstein and Jeffrey Segal, Advice and Consent: The Politics of Judicial Appointments (New York: Oxford University Press, 2005), p. 127. 3 David J. Danelski, “The Influence of the Chief Justice in the Decisional Process of the Supreme Court,” in The Federal Judicial System: Readings in Process and Behavior, edited by Thomas P. Jahnige and Sheldon Goldman (New York: Holt, Rinehart and Winston, 1968), pp. 147-160. 4 See Philip J. Cooper, Battles on the Bench: Conflict Inside the Supreme Court (Lawrence: University Press of Kansas, 1995); David A. Yalof, Joseph Mello and Patrick Schmidt, “Collegiality among U.S. Supreme Court Justices? An Early Assessment of the Roberts Court,” Judicature, Vol. 95, No. 1 (July-August 2011), pp. 1219. 5 David A. Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees. (Chicago: University of Chicago Press, 1999), p. 146. 6 As it turns out, when Bork was nominated the following year, the former solicitor general’s controversial role in Watergate caused barely a stir; rather it, was Bork’s writings and statements about Supreme Court precedents that eventually led to his defeat by a 58-42 Senate vote. 7 Joan Biskupic, American Original: The Life and Constitution of Supreme Court justice Antonin Scalia (New York: Farrar Strauss and Giroux, 2009), p. 104. 8 Ibid. at 108. 9 Yalof et al, “Collegiality Among U.S. Supreme Court Justices,” pp. 17-18. 10 http://www.theatlantic.com/politics/archive/2010/07/lindsey-graham-dramatically-casts-his-vote-for-elenakagan/60082/ 11 Mark Silverstein, Judicious Choices: The Politics of Supreme Court Confirmations, 2nd Ed. (New York: W.W. Norton, 2007).

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Yalof, Pursuit of Justices, pp. 142-155. Ibid., pp. 125-131. 14 See Stefanie Lindquist, David A. Yalof and John A. Clark, “The Impact of Presidential Appointments to the U.S. Supreme Court: Cohesive and Divisive Voting Within Presidential Blocs,” Political Research Quarterly, Vol. 53, No. 4 (December 2000), pp. 795-814. 15 Stephen Skorownek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton, Revised Ed. (New York: Belknap, 1997). 16 Walter Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964), p. 54. 17 Lee Epstein and Jack Knight, The Choices Justices Make (Washington D.C.: Congressional Quarterly Press), p. 78. 18 Richard Kluger, Simple Justice (New York: Vintage, 1977), p. 709. 19 Jennifer Senior, “In Conversation: Antonin Scalia,” New York Magazine, Oct. 6, 2013. 20 Adam Liptak, “Court under Roberts is Most Conservative in Decades,” New York Times (July 24, 2010). 21 David Fontana, “The Obama Justices: Sonia Sotomayor and Elena Kagan represent conflicting styles of liberalism—or are they complementary?” Slate, January 13, 2015 (http://www.slate.com/ articles/news_and_politics/jurisprudence/2015/01/obama_s_supreme_court_justices_elena_kagan_and_sonia_ sotomayor_have_elite.html). 22 Mark Tushnet, In the Balance: Law and Politics on the Roberts Court (New York: W.W. Norton, 2013), p. 67. 23 Richard Stevenson, “President names Roberts as Choice for Chief Justice,” New York Times, September 6, 2005. 24 Todd Purdum, “In Pursuit of Conservative Stamp, President Nominates Roberts.” New York Times, July 20, 2005. 25 Case No. 00-0224 (Texas Supreme Court, Decided: June 22, 2000). 26 Purdum, Todd, “In Pursuit of Conservative Stamp.” 27 Neil Lewis, “An Ultimate Capital Insider,” New York Times, July 20, 2005. 28 Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries that Defines America (New York: Henry Holt and Co, 2007). 29 Ibid. 30 Ibid. at 41. 13

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 13

TRUE TO THE MISSION: LAURA BUSH’S LEGACY AS FIRST LADY Dana Cooper Stephen F. Austin State University, Nacogdoches, TX, US

ABSTRACT In her journey from West Texas to the White House, Laura Bush wore many hats: school teacher, librarian, wife, and mother. Such traditional identities shaped her image as First Lady. But a closer inspection of Laura Bush’s words and deeds over the last decade or more reveals her activism as First Lady. Moving from public reticence to international candor after the September 11 th attacks, from championing her husband’s agendas to pursuing her own, Laura Bush used much of her power and influence as First Lady to specifically focus on women’s issues and travel to dangerous and highly undesirable locales. From Afghanistan to Zambia, she vocalized the need to advance educational opportunities for women and promoted issues critical to women and families worldwide. As she contends, it is “important for all of us, and especially for women and American women, to speak up for our sisters around the world.” “Most people don’t know anything about me, but based on the things that have been published, people probably think I’m a shy librarian... Well, very few librarians fit the stereotype: They’re people who like knowledge and are interested in a lot of different things.”1 — Laura Bush

In her journey from the dry and dusty plains of West Texas to the challenging and thorny world of Washington D.C., Laura Bush wore many hats: elementary school teacher, school librarian, dedicated wife, and devoted mother. Such descriptors express the public’s collective expectations for her and have served as elements that shaped her image as first lady both of Texas and the United States. Overall, these traditional, essentially conservative, and genderprescribed identities largely molded the public’s view of Laura during her eight years in the nation’s capital. Ask the average American to describe her and likely responses will fall under the broad categories of education and literacy. Following in the footsteps of her own mother-

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in-law and fellow first lady, Barbara Bush, such a conventional perspective of Laura dominates the mindset of most Americans today. This view of Laura should come as no surprise for the girl who was raised in a conservative region of a conservative state in a conservative period. The fact that a young woman born and bred in Texas in the 1950s who later married into a politically active and conservative family is seen as a conventional woman is of no consequence by itself. But the fact that these recurring conformist labels have played such a significant role in the molding of Laura’s much admired public identity is far more noteworthy. Identified as her husband’s “secret weapon,” Laura appeals to many as the softer side of her gregarious spouse, and people think more highly of him because of her.2 Since George was elected Texas governor in 1994, Laura’s prevailing public persona as a wife-mother-teacher-librarian was presented, promoted, and protected repeatedly in a number of venues and in a myriad of ways. Most certainly, such descriptions are wholly accurate based on her personal history before and after entering the Bush clan. But the degree to which eight short years in which she pursued her individual career prior to marrying George has dominated her public life and her husband’s political dialogue for nearly four decades is significant. Consult most any source about George, Laura, or both together, and her brief time as an elementary school teacher and later librarian dominate as frequent labels and reinforcing identity markers for the popular first lady who enjoyed consistently high approval ratings throughout her husband’s governorship, presidency, and post-White House life.3 A review of the index of almost any book including Laura notes the numerous references discussing her four years teaching grade school and another four years spent as a librarian. The 2005 fiftyminute documentary about Laura produced by A&E Television Network for the Biography Channel is littered with rhetoric including children, library, teacher, and education.4 How do we as journalists, historians, and scholars explain this apparent and ongoing fixation of Laura Bush in these roles, specifically as a teacher and librarian, when those pursuits lasted but eight out of her 68 years? In short, such career expectations—be they temporary or long-term—were quite typical decisions for women who attended college in the 1950s and 1960s.5 Moreover, such a background dovetails well with a husband whose political aspirations would benefit from his wife’s noble interests. Admittedly, it is hard to find fault with a politician’s wife who dedicated her working life—however short or long it may have been—to children.6 Political men’s wives who have chosen less mainstream careers have often encountered pointed questions and even criticism from the American public. Whether we consider Lou Henry Hoover, a trained geologist and metallurgist, nearly a century ago, or Hillary Rodham Clinton, an accomplished attorney and strategist, much more recently, both women encountered criticism and questions from a suspicious public who was less than accepting of women in non-traditional roles or wives who pursued something other than hearth and home following university graduation. Their educational training, professional lives, and activist approach as First Ladies may have prepared the American public for a new type of woman in the White House, but their time holding what has been described as “the most bizarre volunteer job in the world” frequently met with the nation’s disapproval and criticism.7 Thus, Laura’s decision to pursue career interests close to her heart—children and reading—fit well with her future life as a politician’s wife as well as did her decision to dedicate herself to her family as a full-time domestic engineer. But these choices also allowed political staffers and campaign workers at the state and national level to present an all-

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American family image to the voting public. Both Texan and American electors have responded favorably, historically speaking, to traditional choices and conventional families. Therefore, the presentation of Laura as the domestically focused maternal figure and conservative woman from Texas has played well with voters repeatedly. Any chief of staff or campaign manager would be politically imprudent not to capitalize upon such a marketable past if he or she wishes to have a future. Consequently, in multiple books, campaigns, and films, the conventional and conservative elements of Laura’s marriage and family have been recycled throughout George and Laura’s political life. Laura also fit the Bush mold. With few exceptions, the Bush women tend to become housewives and mothers in lieu of career pursuits outside of their marital unions.8 As the family matriarch, Barbara Bush, surmised, “[W]e’re all very happy being kept by our husbands.”9 Surely, Laura is “as good as any of them in the absolute loyalty department” as one of her biographers has described, and “showed her talents for accommodating herself to the Bush family business early on.”10 So, a simple, superficial summation of Laura Bush as a passive helpmate to a boisterous husband, a lover of children and books, and much-admired first lady twice over tends to be the image that many Americans have of her. This very safe and incredibly sellable version of her has proven itself a successful strategy that advanced George’s political ambitions and has functioned as the theme most often touted by the press concerning his wife over the last two decades. Undoubtedly, Laura clearly contributed to this perception held by so many.11 Reading, children, and education were issues that she was quite comfortable with and gave her an esteemed level of credibility with voters.12 In her own words, she explained that she has “always done what really traditional women do, and I’ve been very, very satisfied.”13 But as Ann Gerhart has argued, “that’s not the whole story. It never is.”14 A closer inspection of Laura Bush’s words and deeds over the last decade or more reveals a very different persona that counters the conformist and exclusively traditional identity of Laura as a determined and focused first lady who chose to commit a great deal of her energies and efforts to international activism. Second only to Hillary Clinton, who went on to become Secretary of State, Laura is the most traveled first lady in history. In eight years, she took a total of 46 trips to more than 75 countries and spent a total of 212 days overseas. The majority of this time abroad came in George’s second term, which reflected a clear sense of urgency and an expanded global platform, when she spent 135 days in foreign countries, which outpaced her husband’s international travel when analyzed for the same four-year period.15 Moreover, when assessing the travel logs of Laura Bush against all the Presidents, she currently stands in third place as the most internationally traveled of that group, behind only Bill Clinton and her husband.16 But she is not an activist simply based on the number of days she spent away from home. Rather, it was what she chose to do with her time, her influence, and her position of power while first lady that defines her as an activist. Whether she was promoting education, healthcare, or opportunities for women and children in Afghanistan or serving as honorary chair of the U.S.-Afghan Women’s Council, working to inspire public and private partnerships for a specific nation or speaking up for the people of Burma during a time of tyranny and instability, promoting education in Africa through the President’s Africa Education Initiative or bringing international attention to the President’s Emergency Plan for AIDS Relief (PEPFAR), advocating the President’s Malaria Initiative (PMI) or coordinating global efforts for breast cancer awareness and research, she was an exceedingly active first lady, particularly through her work described by Anne Heiligenstein, Director of Policy and

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Projects, as a “medical diplomat.”17 As she neared her exit from the White House, she established the Laura W. Bush Traveling Fellowship through the Department of State and the “Diplomacy in Action” program with inaugural fellows chosen in 2008.18 Notably, much of her travel and various initiatives certainly intensified in the second term.19 In a world where George and Laura had no future elections to endure or campaigns to strategize, she could do more of what she wanted without the lingering fear of how a certain program or potential donor might affect prospects or competing interests down the road. As Laura explained, “[Y]ou can make the most of [life in the White House] ... you can make it what you want it to be. I don’t mean in a frivolous way but I mean in a way that has meaning for myself and everyone around me.”20 How and when did this activist career begin? Not surprisingly, Laura’s initial foray into politics came in her home state of Texas. During her husband’s two gubernatorial terms between 1995 and 2000, Laura supported a number of causes related to education and literacy while addressing significant issues related to women’s and children’s health. With regard to children’s literacy, she patronized four major initiatives that included “Take Time for Kids,” a public awareness and educational campaign that provides caregivers information about parenting topics. Her “Family Literacy” initiative encouraged communities across Texas to establish literacy programs for families through a local collaboration with the Barbara Bush Foundation for Family Literacy. “Reach Out and Read” was a pediatric-based literacy program in which doctors, following basic well-checks and annual physicals, wrote prescriptions for reading to children for the parents, which formalized and really instilled the need to read to children daily as a medical directive from their doctor. Finally, “Ready to Read” concentrated on early-childhood-education programs and preceded the “Ready to Read, Ready to Learn,” which served as a central educational initiative during her time as First Lady of the United States.21 For adults, Mrs. Bush established the Texas Book Festival in an effort “to honor Texas authors, promote the joy of reading and serve to benefit the state’s public libraries.”22 The inaugural festival took place in November 1996 and raised over $600,000 in its first year.23 To date, the event has contributed more than $2.6 million to libraries across Texas. Many consider it her crowning achievement in Texas.24 Care for the less fortunate was also a hallmark of Laura’s Texas years. For example, she opened several “Rainbow Rooms” in numerous locations throughout the state that functioned as a store-front setting for Child Protective Services (CPS) workers to procure anything from new clothes, car seats, and school supplies for abused and neglected children.25 In cooperation with the Rainbow Rooms, she sponsored the Adopt-a-Caseworker program, which fostered connections and partnerships between CPS caseworkers and private patronage.26 This approach established a support system between the community and CPS by matching a local organization such as a small business, local church, or school group, with a caseworker. The adopting group assists with the special needs of that caseworker’s clients through donations such baby supplies or even emotional support.27 Finally, Laura was an avid promoter of breast cancer and Alzheimer’s awareness and medical research, believing that “greater dialogue will lead to greater awareness.”28 She took such an approach to multiple initiatives. Laura also took an interest in policy as Texas’s first lady. As an advocate, but not a policy maker, for education, she achieved significant policy success when she assisted with the writing and securing of support for legislation that advanced preschool educational efforts for Texas children to read.29 Liz Carpenter, Lady Bird Johnson’s press secretary and long-

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time assistant, praised Laura’s tasks and temperament, saying Laura was admired and respected across the state.30 In fact, her tenure as first lady of Texas met with nearly universal praise, with Democrats and Republicans both concurring that she was one of, if not the best first lady to have ever served the state.31 Even so, while nothing that occurred in the previous six years could be deemed activist, the issues she championed did serve as the foundation of her initiatives as first lady at a national and eventually international level. Following her husband’s resignation as governor of Texas in 2000 and inauguration as president of the United States in 2001, Laura continued to promote and support the issues and causes at a national level that she had at a state level. The consistency between her ideas and initiatives in Austin and Washington, D.C. mirrored one another almost precisely and rightfully so. After all, she and her staff had achieved terrific success in Texas. Consequently, it was logical to continue the same path but in another location on a broader scale.32 Accordingly, she and her team, many of whom came with her from Texas to the nation’s capital, settled in very quickly.33 One of her first decisions was to move the first lady’s office out of the West Wing and back to where it had historically resided in the East Wing, and she began “to replicate some of [her] most successful Texas projects on a national scale.”34 Some of her first ventures focused on teaching with the Teach for America and Troops to Teachers programs. She quickly established the National Book Festival, based on the Texas version, and she worked with the Library of Congress as a co-sponsor and turned to C-SPAN to televise the event. By that first summer, she believed she “was finally hitting my stride in the White House” in hosting an early childhood cognitive development conference at Georgetown University, her so-called “pet project.”35 In September, she hosted her first state dinner with President and Mrs. Vicente Fox of Mexico, and she kicked off the first National Book Festival. After nine months in the White House, according to Anita McBride, Chief of Staff during the second term, “all the pieces were fitting together.”36 Likewise, Anne Heiligenstein confirmed that the first lady was wisely utilizing her “bully pulpit.”37 Laura was “doing what [she] loved” and had found her “place in the world of Washington and beyond.”38 As she reflected upon the moment, she recognized that she had “a forum... I won’t always have it. The time is now.”39 Little did she know just how right she was. On the morning of September 11, 2001, Laura was on her way to Capitol Hill to testify on an early childhood education conference she had hosted two months earlier, which made her only the fourth first lady in history to appear before a Congressional committee.40 As she remembered it, that morning was lovely, “sunny and warm, and the sky was a brilliant cerulean blue.” As her first-term Chief of Staff Andi Ball reflected, “[I]n the time it had taken to drive the less than two miles between the White House and the Capitol, the world ... had irrevocably changed.”41 But Laura had not. As always, she adapted to her circumstances, and this day marked the turning point in Laura’s trajectory as first lady. Just as her husband’s presidency was abruptly and unexpectedly dominated by foreign affairs, so too was her first ladyship. But as the world changed on that Tuesday morning, First Lady Laura’s focus did not, merely the location of her efforts. In her first official act after 9/11, she wrote two letters to school aged children in the United States. To elementary students, she began the letter with “Dear Children,” and to the middle and high school students, she opened her message with “Dear Students.”42 In her first speech after the terrorist attacks, she spoke to “Learning Leaders” in New York City and directed her thanks and appreciation to the teachers and volunteers in schools across the country. She noted that “[A]s we rebuild and recover from the tragedy of September 11, we

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must remember that, while our lives have changed forever our purpose as educators and as volunteers remains the same.”43 With those words, she may very well have been talking about herself. When she substituted for her husband in his weekly Saturday radio address in November, 2001, she became the first first lady to deliver an entire Presidential Radio Address and chose to address the issue of women’s rights in Afghanistan.44 From her ranch in Crawford, Texas, she spotlighted the “brutality against women and children by the al-Qaida terrorist network” and argued that, “in Afghanistan we see the world the terrorists would like to impose on the rest of us.”45 She differentiated the Taliban from Muslims around the world and identified the “poverty, poor health, and illiteracy that the terrorists” had imposed on women and children for decades.46 Laura, not the president, forever aligned the war on terror with the fight for women and children but chose to pursue much of this initiative on her own. Most importantly, she solidified her long-standing advocacy for women and children when she categorized “the fight against terrorism” as “a fight for the rights and dignity of women.”47 A week later, she hosted eleven exiled Afghani women at the White House and “argued that the rights of women must be safeguarded in a post-Taliban government.”48 These two events marked a historic turning point in her tenure as first lady. Moving from a degree of public reticence to international candor, from championing her husband’s agendas to pursuing her own, Laura used much of her power and influence as first lady to become an activist for women’s rights and travel to in dangerous and highly undesirable locales to achieve such goals.49 From Afghanistan to Zambia, Laura vocalized the need to advance educational opportunities for women while promoting issues critical to children and families worldwide. While addressing the United Nations on International Women’s Day in 2002, she asserted, “[P]rosperity cannot follow peace without educated women and children.”50 Diwana Qol, a principal at a girls’ school in northern Afghanistan echoed such sentiments when he explained that Afghani “girls are part of our future... [and] we will need all of our children, boys and girls, to be well educated if we are to rebuild our country from all this war.”51 Based on her efforts in making the plight of Afghani women and children a global focus, Laura was named the Genesis Jane Doe Award recipient in 2002. In accepting the award, she emphasized the need to “educate women and children ... [as the] key to a prosperous and peaceful society.”52 As Farahnaz Nazir, the founder of the Afghanistan Women’s Association in 2001, maintains, “Society is like a bird. It has two wings. And a bird cannot fly if one wing is broken.”53 Together with women like Nazir and other courageous Afghani women, Laura has worked with them to “rebuild and transform” their homeland.54 In her evolution from first lady to international activist, she consistently highlighted her focus on Afghanistan, from job training for women or expanded educational opportunities for children, and her dedication was sincere and unwavering.55 Her interest in the country, particularly its women and children expanded during the second term with the help of her second chief of staff, Anita McBride, whose wide-ranging experience in Washington, D.C. and years at the State Department outlined the global nature of Laura’s activism between 2005 and 2009.56 As one of her first duties, McBride carefully planned the secret trip to Afghanistan in 2005 while that country was very dangerous and its future uncertain.57 For a first lady to travel to a country at war to meet personally with Afghan women and children made a significant impact on programs such as the U.S.-Afghan Women’s Council. But as Laura contends, such risks are important for “all of us, and especially for women and American women, to speak up for our sisters around the world.”58 Just as she predicted, “the

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role of the First Lady is whatever the First Lady wants it to be.”59 Clearly, Laura had decided what she wanted in her remaining years as first lady. In many ways, her Afghan foray into international activism provided the experience and continued activism in other areas around the world, specifically Africa. Be it a trip to Cape Town, South Africa to talk to the workers at the Western Cape Network on Violence Against Women, a visit to the PASADA to meet personally with individuals dealing with HIV/AIDS, or a talk with orphans at the Catholic ministry center in Tanzania, her time and energy in a number of initiatives on that continent were have been very well-received.60 Similarly, in what has become something of a pattern for the couple—the unveiling of a presidential initiative and Laura traveling solo to promote his plan—she touted the President’s Emergency Plan for AIDS Relief (PEPFAR) when addressing the Fawe Girls’ School in Rwanda in 2005.61 Her leadership of PEPFAR and the President’s Malaria Initiative in sub-Saharan Africa, which resulted in five trips alone to the continent, was coupled with trips to Ghana to address women’s empowerment and to Nigeria to advocate for PEPFAR.62 The capstone of her wide-ranging programs in Africa may have come when she hosted HIV-positive mothers in the White House as part of the Mothers to Mothers to Be mission, which “provide[d] immediate comfort, hope and guidance at a critical time” and demonstrated that “women can enjoy long lives with HIV, and they can avoid transmitting HIV to their newborn babies.”63 Such interest in and public welcoming of often-ostracized women in the nation’s capital by its leading lady certainly counters conservative notions of Laura as a simple librarian. Likewise, Laura supported and shed light on the need for human rights in Burma. In cooperation with the entire Women’s Caucus of the U.S. Senate, Laura wrote a personal letter to the Secretary General of the United Nations, calling for the release of Aung San Suu Kyi as a political prisoner as an act “supporting freedom and reform for Burma.”64 On International Human Rights Day in 2007, she joined with several officials from National Security Affairs in presenting herself via video teleconference to demand the immediate and unconditional release of Kyi and called upon Burma’s neighbors to use their influence in catalyzing a “democratic transition.”65 Such pressing advocacy at such a high and influential level does not support the superficial version of Laura the elementary teacher. Finally, her dedication to instigate conversations about breast cancer in countries around the world brought awareness to the disease; encouraged discourse at the highest governmental levels; removed some of the remaining stigma of the mere word breast in public dialogue; and provided greater access for women to seek medical care, screenings, diagnosis, and treatment. In her last two years as first lady, Laura established several breast cancer alliances in countries that had histories of shaming women into silence rather than treating breast cancer as a medical situation. Between 2007 and 2008, she led such cooperation in the Mexico, Panama, and Saudi Arabia.66 In assertive form, she pledged to make breast cancer “our business” in the United Arab Emirates and for the millions of women diagnosed in every country every year. This was quite emphatic, if not aggressive, for a supposed conservative first lady to instigate such initiatives about a relatively taboo topic in countries that historically did not diagnose women with breast cancer until stage three or four, which is all but a death sentence.67 Consequently, the U.S.-Middle East Partnership for Breast Cancer Awareness and Research of the Americas, for example, offered women the opportunities to tell their stories, from the cultural context and environment for “empowering ... women to take charge of their own health.”68

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Actions such as hosting HIV-positive women in the White House and talking of “empowering women” do not mesh with the alleged conformist perspective of Laura. Demanding the release of political prisoners and traveling to countries in the midst of war to address women’s rights and the importance of educating all children are not the first examples that come to mind in discussing her time as first lady. But if one takes an evidence-based approach to evaluating Laura, a very interesting picture appears. If we actually stop to analyze her speeches without her picture at the top of the page; pull her name off the travel logs; and examine the breadth and depth of her initiatives, the frequent and far-ranging international travel, and consider instead the dedication and consistency of said efforts, they read much more like what the American public often associates with Hillary Clinton than with Laura Bush.69 Without a doubt, Laura has demonstrated during and after her time in the White House her unwavering dedication to the challenges facing women and children around the world. But in reality, her pursuit of endeavors that involve families and children as well as literacy and learning date back to Texas and explain her continuity as a state, national, and global leader.70 Whether it was her education at SMU in preparation for teaching, or her desire for family as a young girl and wife, she has been focused on such issues, one might argue, for most of her life. As Laura described it well before the world-changing events of 9/11, “[Y]ou can imagine then, how easy it was to make the decision to continue my commitment to helping children learn long after I stopped teaching. I am proud to be able to continue that same mission today.”71 As Anita McBride, surmised, “she was true to the mission.”72 When viewed independently of her husband’s polarizing foreign policy decisions, Laura’s travel archive and various initiatives on an international level can be seen in a very different light. Perhaps even more importantly, she has been exceptionally active in her time since leaving the White House. In her post-White House life, Laura has boosted a women’s farm project, renovated a clinic to offer breast and cervical cancer screenings as part of the Pink Ribbon/Red Ribbon partnership, and visited an orphanage. All of this labor was just in Zambia.73 The initiatives she pursued twenty years ago appear to be the initiatives she will pursue for the next twenty. The six major pillars of the Bush Institute “crosscut” the ongoing work of the former President and First Lady and speak to many of Laura’s long-term “portfolio” of interests.74 Programs related to education reform, global health, and women’s initiatives have benefitted from her involvement for decades and will continue to do so. As she explained in a 2009 interview with Robin Roberts, “I’ll continue those interests, I hope, for the rest of my life.”75 While it may be easy and certainly more comfortable to imagine Laura as the dutiful homemaker wife who once taught second grade and enjoys reading to children, this view is incomplete and thus inaccurate. Based on her time and efforts as first lady, in this country and especially abroad, the public at home must contrast its view of Laura as the librarian with Laura the international activist first lady.

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ENDNOTES Antonia Felix, Laura: America’s First Lady, First Mother. (Avon, Massachusetts: Adams Media Corporations, 2003), 47. 2 “Laura Bush.” Biography, DVD. A&E Television Networks, 2005. 3 Between 2001 and 2009, Laura enjoyed an average 73% favorability rating with the American public. “Laura Bush Leaves White House as Popular Figure,” Gallup, Inc., accessed January 8, 2009. http://www.gallup.com/poll/113782/laura-bush-leaves-white-house-popular-figure.aspx. Her approval rating soared to 85% in January of the next year upon her husband’s second inauguration, which made her the highest-rated first lady since opinion polls began rating the first ladies in 1939. She was the third mostadmired woman in the United States behind only Oprah Winfrey and Hillary Clinton. Ronald Kessler, Laura Bush: An Intimate Portrait of the First Lady. (New York, New York: Doubleday, 2006), 3. Notably, Laura was named number four on Forbes’s “Too 100 Women.” Elizabeth MacDonald and Chana R. Schoenberger, “The World’s 100 Most Powerful Women,” Forbes, August 20, 2004, accessed January 8, 2015. http://www.forbes.com/ lists/2004/08/18/04powomland.html. 4 “Laura Bush.” Biography, DVD. A&E Television Networks, 2005. 5 The percentage of women (ages 20-24) enrolled in institutions of higher education in the 1950s was approximately 5-8% of women in the United States. The percentage of women (ages 20-24) enrolled in institutions of higher education in the 1960s was approximately 7-14% of the overall population of American women. In 1964, when Laura Bush began at Southern Methodist University, women made up approximately 38.4% of the overall enrollment at universities across the country. U.S. Department of Education, Office of Educational Research and Improvement, 120 Years of American Education: A Statistical Portrait, accessed January 12, 2015, http://nces.ed.gov/ pubs93/93442.pdf. 6 As former Representative Pat Schroeder (D-Colorado) more candidly remarked, “Laura Bush crafted this image ... Who could be angry at a librarian and educator, someone who never stepped outside the bounds?” Susan Schindehette, “The First Lady Next Door,” People, January 29, 2001, vol. 55, no. 4. 7 Ann Gerhart, The Perfect Wife: The Life and Choices of Laura Bush (New York, New York: Simon and Schuster Paperbacks, 2005), xiv. Solid biographies on Lou Henry Hoover and Hillary Rodham Clinton present the difficulties faced by both individuals as modern women occupying a traditional role as first lady. See Nancy Beck Young, Lou Henry Hoover: Activist First Lady (Manhattan, Kansas: University Press of Kansas, 2004). Carl Bernstein, A Woman in Charge: The Life of Hillary Rodham Clinton (New York, New York: Vintage, 2008). 8 One recent and notable exception is Amanda Bush, wife of George P. Bush, who is an attorney and partner with Jackson Walker, L.L.P. “Amanda L. Bush Biography,” Jackson Walker, L.L.P., accessed January 12, 2015. http://www.jw.com/ Amanda_L_Bush/. 9 Kitty Kelley, The Family: The Real Story of the Bush Dynasty (New York, New York: Doubleday, a division of Random House, Inc., 2004), 391. 10 Gerhart, The Perfect Wife, xi. 11 MaryAnne Borrelli, The Politics of the President’s Wife. (College Station, Texas: Texas A&M University Press, 2011), 135. 12 Both of Laura’s chiefs of staff as well as her director of policy and projects commented on her authenticity, credibility, and instincts as a first lady in Texas and of the United States. Ball, Andi. Interview by author. Audio recording. Nacogdoches, Texas, September 26, 2014. Heiligenstein, Anne. Interview by author. Audio recording. Nacogdoches, Texas, October 8, 2014. McBride, Anita. Interview by author. Audio recording. Nacogdoches, Texas, November 21, 2014. McBride, Anita. Interview by author. Audio recording. Nacogdoches, Texas, January 6, 2015. 13 Gerhart, The Perfect Wife, 13. 14 Ibid. 15 Ball, Andi. Interview by author. Audio recording. Nacogdoches, Texas, September 26, 2014. McBride, Anita. Interview by author. Audio recording. Nacogdoches, Texas, November 21, 2014. 16 In all likelihood, Michele Obama will likely push Mrs. Bush to fourth place by the end of his presidency in 2017. “Which First Lady Flies Highest? Michelle vs. Laura,” National Taxpayers Union, accessed January 5, 2015, http://www.ntu.org/ governmentbytes /detail/Which-First-Lady-Flies-Highest-Michelle-vs-Laura. 1

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“First Lady’s Work Advances President Bush’s Agenda At Home And Abroad,” The White House, The Bush Record, Mrs. Laura Bush’s Leadership, accessed January 5, 2015, http://georgewbushwhitehouse.archives.gov/infocus/bushrecord/factsheets/ leadership.html. Heiligenstein, Anne. Interview by author. Audio recording. Nacogdoches, Texas, October 8, 2014. 18 “Laura Bush Traveling Fellowship,” U.S. Department of State, Diplomacy in Action, accessed January 5, 2015, http://www.state.gov/p/ io/unesco/programs/143138.htm. 19 Aware of the need to adopt a “broad but focused appeal,” Laura Bush quickly identified the essentials of achieving success as First Lady. See Borrelli, The Politics of the President’s Wife, 51. 20 “Laura Bush.” Biography, DVD. A&E Television Networks, 2005. 21 Texas State Library and Archives, Texas Archival Resources Online. Texas Governor George W. Bush: An Inventory of First Lady Laura Bush’s Files. Located at the George W. Bush Presidential Library, about 19941999, bulk 1995-1999, accessed January 7, 2015, http://www.lib. utexas.edu/taro/tslac/80001/tsl-80001.html. 22 “Mission and History,” Texas Book Festival, accessed January 8, 2015, http://www.texasbookfestival.org /mission-history/. 23 Beatrice Gormley, Laura Bush: America’s First Lady. (New York, New York: Aladdin Paperbacks, 2003), 75. 24 “Mission and History,” Texas Book Festival, accessed January 8, 2015, http://www.texasbookfestival.org /mission-history/. 25 Christopher Andersen, George and Laura: Portrait of an American Marriage. (New York, New York: Harper Collins Publishers, Inc., 2002), 184. 26 Heiligenstein, Anne. Interview by author. Audio recording. Nacogdoches, Texas, October 8, 2014. 27 “Greater Texas Community Partners,” Texas Department of Family and Protective Services, accessed January 8, 2015, http://www.dfps.state.tx. us/Child_Protection/ About_Child _Protective_Services/partners.asp. 28 Breast cancer was a very personal cause for Laura Bush as both her mother and grandmother had been afflicted with the disease and she had volunteered with the Susan G. Komen Foundation over thirty years ago. Liz Marlantes, “Laura Bush Takes Breast Cancer Message to Mideast.” ABC News, October 20, 2007, accessed January 10, 2015, http://abcnews.go.com/Politics/OnCallPlus/story?id=3755689. Likewise, her interest in Alzheimer’s stemmed from losing her own father to the disease in 1995. Laura Bush, “Essay: ‘The Sad Goodbye,’ by Former First Lady Laura Bush,” ABC News, October 19, 2010, accessed January 8, 2015, http://abcnews.go.com/GMA/ AlzheimersNews/laura-bush-essay-alzheimers-caregiving-sad-goodbye/story ?id=11910781. Texas State Library and Archives, Texas Archival Resources Online. Texas Governor George W. Bush: An Inventory of First Lady Laura Bush’s Files. Located at the George W. Bush Presidential Library, about 1994-1999, bulk 1995-1999, accessed January 7, 2015, http://www.lib.utexas.edu/taro/tslac/ 80001/tsl80001.html. 29 Perhaps one of Laura’s successes, at home and abroad, has been her deliberate decision to advocate for issues that matter most to her without acting as a policy-maker or rival to her husband. Ellen Gamerman, “Handling the First Lady, Gently,” Baltimore Sun, March 22, 2001, accessed September 2, 2014, http://articles.baltimoresun .com/2001-03-22/news/0103220222_1_laura-bush-ball-hillary-rodham. 30 Robert P. Watson, Laura Bush: The Report to the First Lady: 2005. (Hauppauge, New York: Nova Science Publishers, 2005), 161. 31 Both George and Laura had many friends outside of the Republican Party and enjoyed numerous friendships across the political aisle. Ball, Andi. Interview by author. Audio recording. Nacogdoches, Texas, September 26, 2014. 32 Ball, Andi. Interview by author. Audio recording. Nacogdoches, Texas, September 26, 2014. 33 Critical members of her staff who brought consistency to her leadership between Texas and Washington, D.C., were Andi Ball and Anne Heiligenstein. Ball, Andi. Interview by author. Audio recording. Nacogdoches, Texas, September 26, 2014. Heiligenstein, Anne. Interview by author. Audio recording. Nacogdoches, Texas, October 8, 2014. 34 Gormley, Laura Bush, 100. Laura Bush, Spoken from the Heart. (New York, New York: Scribner: A Division of Simon and Schuster, 2010), 180. 35 Bush, Spoken from the Heart, 192. 36 McBride, Anita. Interview by author. Audio recording. Nacogdoches, Texas, November 21, 2014. 37 Heiligenstein, Anne. Interview by author. Audio recording. Nacogdoches, Texas, October 8, 2014. 38 Bush, Spoken from the Heart, 194. 39 Molly Meijer Wertheimer, “Laura Bush: Using the ‘Magic of Words’ to Educate and Advocate,” in Inventing a Voice: The Rhetoric of American First Ladies of the Twentieth Century. (Lanham, Maryland: Rowman and Littlefield Publishers, Inc., 2004), 445. 17

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Bradley H. Patterson, To Serve the President: Continuity and Innovation in the White House Staff. (Washington, D.C.: Brookings Institution Press, 2010), 246. 41 Ball, Andi. Interview by author. Audio recording. Nacogdoches, Texas, September 26, 2014. 42 “Mrs. Bush’s Letter to Elementary School Students Following Terrorist Attacks,” The White House. President George W. Bush, September 12, 2001, accessed January 14, 2015, http://georgewbush-whitehouse. archives.gov/news/releases/2001/09/letter2.html. “Mrs. Bush’s Letter to Middle and High School Students Following Terrorist Attacks,” The White House. President George W. Bush, September 12, 2001, accessed January 14, 2015., http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/letter 1.html. 43 “Mrs. Bush’s Remarks at ‘Learning Leaders,’” The White House, President George W. Bush, September 25, 2001, accessed January 9, 2001, http://georgewbush-whitehouse.archives.gov/news/releases/2001/ 09/20010925-13.html. 44 “Mrs. Bush Delivers Radio Address,” The White House, President George W. Bush, November 17, 2001, accessed January 9, 2015, http://georgewbush-whitehouse.archives .gov/news/releases/2001/11/ 200111173.html. Another significant radio address following in 2002 when Laura participated in a roundtable discussion at Radio Free Europe/Radio Liberty from Prague, Czech Republic in 2002 and went on to address the Afghani people and declared that “America ba shooma ahst. [America is with you.]” “Mrs. Bush Delivers Radio Address,” The White House, President George W. Bush, May 21, 2002, accessed January 9, 2015, http://georgewbush-whitehouse. archives.gov/news/ releases/2001/11/20011117-3.html. 45 “Radio Address by Mrs. Bush,” The White House, President George W. Bush, November 17, 2001, accessed January 12, 2015, http://georgewbush-whitehouse.archives .gov/news/releases/2001/11/ 20011117.html. 46 Communications, White House Office of. Besanceney, Brian. Defending Freedom Table. “The Taliban’s War Against Women and Children.” OA/NARA 3138/3005 1743, folder 52. Hollinger ID 87954, Box 51. Courtesy of the George W. Bush Presidential Library. 47 “Radio Address by Mrs. Bush,” The White House, President George W. Bush, November 17, 2001, accessed January 12, 2015, http://georgewbush-whitehouse. archives.gov /news/releases/2001/ 11/20011117.html. 48 Andersen, George and Laura, 273. 49 Felix, Laura, 273. 50 “Mrs. Bush’s Remarks on International Women’s Day at the United Nations,” The White House, President George W. Bush, March 8, 2002, accessed January 12, 2015, http://georgewbush-whitehouse.archives.gov /news/releases/2002/03/20020308-15.html. 51 Ibid. 52 “Mrs. Bush’s Remarks at the Genesis Shelter Mother’s Day Lunch,” The White House, President George W. Bush, Mary 1, 2002, accessed January 12, 2015, http://georgewbush-whitehouse.archives.gov/news /releases/2002/05/20020501-17.html. 53 “Mrs. Bush’s Remarks on International Women’s Day at the United Nations,” The White House, President George W. Bush, March 8, 2002, accessed January 12, 2015, http://georgewbushwhitehouse.archives.gov/news/releases/2002/03/20020308-15.html. 54 “Mrs. Bush’s Remarks at USAID Event with Afghan Authority Interim Chairman Karzai,” The White House, President George W. Bush, January 29, 2002, accessed January 12, 20015, http://georgewbushwhitehouse.archives.gov/news/releases/2002/ 01/20020129-12.html. 55 “Mrs. Bush’s Remarks at Center for Strategic and International Studies Luncheon,” The White House, President George W. Bush, January 25, 2003, accessed January 12, 2015, http://georgewbush-whitehouse. archives.gov/news/releases/2003/01/20030125-1.html. 56 Andi Ball praised her successor and touted her strengths as Laura’s chief of staff and a wonderful addition to the team in the second term as the First Lady became much more global in her pursuit of initiatives. Ball, Andi. Interview by author. Audio recording. Nacogdoches, Texas, September 26, 2014. 57 McBride, Anita. Interview by author. Audio recording. Nacogdoches, Texas, January 6, 2015. “Behind the Scenes with Laura Bush,” Newsmax, Accessed September 4, 2014, http://www.newsmax.com/ RonaldKessler/firstlady-laura-bush/2008/10/07/id/325773/. 58 “Laura Bush: Life After the White House,” FoxNews.com, On the Record Interview with Greta Van Susteren, November 13, 2009, accessed January 13, 2015, http://www.foxnews.com/story/2009/ 11/14/laura-bush-lifeafter-white-house. 59 Bill Adler, ed., America’s First Ladies: Their Uncommon Wisdom, from Martha Washington to Laura Bush. (Lanham, Maryland: Taylor Trade Publishing, 2002), 220.

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“Mrs. Bush’s Remarks at PASADA in Dar es Salaam, Tanzania,” The White House, President George W. Bush, July 13, 2005, accessed January 12, 2015. http://georgewbush-whitehouse.archives.gov/news/ releases/2005/07/20050713-2.html. “Mrs. Bush’s Remarks in a Discussion with Orphans and Clients of PASADA in Tanzania,” The White House, President George W. Bush, July 13, 2005, accessed January 12, 2015. http://georgewbush-whitehouse.archives.gov/news/ releases/2005/07 /20050713-4.html. 61 Wertheimer, “Laura Bush,” 437. Ironically, and in similar fashion to the Hoover presidential marriage, George and Laura’s marital partnership mimics Herbert and Lou Henry’s public-private relationship. As Borrelli argues, “Lou Henry Hoover’s leadership was often linked to Herbert Hoover’s, but her successes were her own.” The very same can be said of Laura. See Borrelli, The Politics of the President’s Wife, 46. 62 “Press Briefing by the First Lady en Route Accra, Ghana,” The White House, President George W. Bush, January 15, 2006, accessed January 12, 2015. http://georgewbush-whitehouse.archives.gov/news/releases/ 2006/01/20060115.html. “Mrs. Bush’s Remarks at a Visit to St. Mary’s Hospital in Nigeria,” The White House, President George W. Bush, January 18, 2006, accessed January 12, 2015. http://georgewbushwhitehouse.archives.gov/news/releases/2006/01/20060118.html. 63 “Mrs. Bush’s Remarks in Honor of the Visiting Guests from the Mothers to Mothers-To-Be Programme in Capetown, South Africa,” The White House, President George W. Bush, March 13, 2006, accessed January 13, 2005. http://georgewbush-whitehouse .archives.gov/news/releases/ 2006/03/20060313-2.html. 64 “Remarks by Mrs. Bush and Members of the Senate in Announcing the Senate Women’s Caucus on Burma,” The White House, President George W. Bush, May 23, 2007, accessed January 13, 2015, http://georgewbushwhitehouse.archives.gov/news /releases/2007/05/20070523-7.html. 65 “Mrs. Bush’s Remarks at a Video Teleconference on Burma in Recognition of International Human Rights Day,” The White House, President George W. Bush, December 10, 2007, accessed January 13, 2015, http://georgewbush-whitehouse.archives.gov/news /releases/2007/ 12/20071210.html. 66 “Mrs. Bush’s Remarks on the U.S.-Middle East Partnership for Breast Cancer Awareness and Research,” The White House, President George W. Bush, May 18, 2008, accessed January 13, 2015, http://georgewbushwhitehouse.archives.gov/news/ releases /2008/05/20080518-3.html. “Mrs. Bush’s Remarks at the Launch of the U.S.-Mexico Partnership for Breast Cancer Awareness and Research,” The White House, President George W. Bush. March 14, 2008, accessed January 13, 2015, http:// georgewbush-whitehouse.archives.gov /news/releases/2008/05/20080518 -3.html. “Mrs. Bush’s Remarks at Announcement of U.S.-Panama Partnership for Breast Cancer Awareness and Research,” The White House, President George W. Bush, November 21, 2008, accessed January 13, 2015, http://georgewbush-whitehouse.archives.gov/ news/releases /2008/11/20081121-12.html. “Mrs. Bush’s Remarks on the U.S.-Saudi Partnership for Breast Cancer Awareness and Research,” The White House, President George W. Bush, May 16, 2008, accessed January 13, 2015, http://georgewbush-whitehouse. archives.gov/news/ releases/2008/05/20080516-19.html. 67 “Mrs. Bush’s Remarks at the Launch of the U.S.-Mexico Partnership for Breast Cancer Awareness and Research,” The White House, President George W. Bush, March 14, 2008, accessed January 13, 2015. http://georgewbush-whitehouse.archives.gov/ news/releases/2008/05/20080518-3.html. 68 “Mrs. Bush’s Remarks on the U.S.-Middle East Partnership for Breast Cancer Awareness and Research,” The White House, President George W. Bush, May 18, 2008, accessed January 13, 2015, http://georgewbushwhitehouse.archives.gov/ news/releases /2008/05/20080518-3.html. 69 When asked to comment on the hypothetical deleting of Laura’s name and simply analyzing her rhetoric and activities as arguably appearing “Hillary-esque,” she simply replied, “Interesting, isn’t it?” She later summarized the reality of any coverage of any first lady as being “the story that gets written.” Ball, Andi. Interview by author. Audio recording. Nacogdoches, Texas, September 26, 2014. 70 McBride, Anita. Interview by author. Audio recording. Nacogdoches, Texas, January 6, 2015. 71 “Mrs. Bush’s Remarks at DC Teaching Fellow Launch,” The White House, President George W. Bush, February 22, 2001, accessed January 12, 2015. http://georgewbush-whitehouse.archives.gov/news/releases/ 2001/02/20010222-13.html. 72 McBride, Anita. Interview by author. Audio recording. Nacogdoches, Texas, November 21, 2014. 73 Tom Benning, “Laura Bush gives a boost to women’s farm project in Zambia,” Dallas Morning News, June 29, 2013, accessed January 13, 2015, http://www.dallasnews.com/ news/community-news/park-cities /headlines/20130629-laura-bush-gives-a-boost-to-womens-farm-project-in-zambia.ece. Tom Benning, “George and Laura Bush building legacy in Africa,” Dallas Morning News, July 1, 2013, accessed January 13, 2015, http://www.dallasnews.com/news/metro/20130701-george-and-laura-bush-are-building-a-legacy-inafrica.ece. “The President and the orphan: Poignant picture captures moment George W Bush embraced child on tour of Africa,” Daily Mail, July 6, 2012, accessed January 13, 2015, http://www.dailymail.co.uk 60

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/news/article-2169770/Former-President-George-Bush-forgoes-July-Fourth-celebrations-spends-holidaysZambian-orphanage.html. 74 McBride, Anita. Interview by author. Audio recording. Nacogdoches, Texas, January 6, 2015. 75 “Laura Bush plans ambitious agenda,” Politico, June 9, 2009, accessed January 13, 2015, http://www.politico.com/news/stories/0609/23504. html.

In: The George W. Bush Presidency. Volume I Editor: Meena Bose

Chapter 14

COMMENTARY: THE LEADERSHIP OF FIRST LADY LAURA BUSH* Anita McBride Assistant to President George W. Bush and Chief of Staff to First Lady Laura Bush, 2005-2009 Senior Advisor, Bureau of International Organizations, Department of State, 2004 Senior Advisor to the Secretary and White House Liaison, Department of State, 2002-2003 Special Assistant to the President for White House Management, 2001

It is important to tell this story of the president’s spouse, of the American First Lad[ies] and the myriad of contributions that they have made throughout our history, to politics and policy, and to global diplomacy. It’s a tough job. There’s an expectation to be in two worlds. You’re expected to be involved in meaningful initiatives and policy issues. But you’re also responsible for being the caretaker of the White House and for taking care of your families and the home life, which is so important to the health and welfare of the President, who, as the leader of the free world, has every single problem come to his desk. So, it’s a complex role. It’s always evolving. And it’s especially sensitive to an ever-changing media climate. Barbara Bush, someone that I’ve admired, reflected on the role after she left the White House, and she said, “I never considered the demands to be a challenge, but rather it was an opportunity”; and that’s such an optimistic way to look at it. And Lady Bird Johnson, one of our most activist First Ladies, said, “I have a podium and I intend to use it.” The more complicated the times become, the more important it is for First Ladies to use their position so wisely. And what we understand, and what we see through history is every single person puts their own stamp on it. The position has no position description, it also has no statutory authority, it has no salary. Frankly, it’s a lot of freedom to do with the position what you want to do and to be yourself.

Selected commentary from Forum, “The Leadership of First Lady Laura Bush,” Conference on the George W. Bush Presidency, Hofstra University, March 25, 2015.

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Pat Nixon called it the hardest unpaid job in the world. Ronald Reagan said, “The government gets only one employee for free, and that’s the First Lady.” Rosalynn Carter said, “I have learned that I have influence. I can just look at a program and it gets attention, and I have a responsibility to do that.” No other confidante, or adviser to the president, is as uniquely invested or devoted into their spouse’s success. Laura Bush looked to Lady Bird Johnson as one of her role models. When asked, who’s your favorite First Lady, of course she had her mother-in-law as her wonderful example and they love each other. But she also looked to another Texas First Lady, Lady Bird Johnson, who had such a profound impact on our country, the courage to campaign for the Civil Rights Act and in the deeply unpopular area of the country in the South. She understood the power of media and of communicating effectively, she would also critique the president’s speeches. She was a millionaire in her own right, a businesswoman in her own right because she owned those radio stations all across Texas, she knew the power of communication and her podium. I had the great privilege of being with Laura Bush, working side by side with her, traveling all over the country. She took, promoted, and launched projects around the country, and, indeed, around the world. Seventy-seven countries in eight years. Yes, she is the third most traveled First Lady. Pat Nixon was the first - 81 countries. Again, something people don’t know about her. Hillary Clinton at 80, Laura Bush at 77. I saw so many examples of her gentle power around the world. She was unsung and unrecognized by many for her work on education reform, women’s health and human rights, especially Afghan women. When we were in her presence, we responded, and we did not want to fail her. She put no demands on us, but the fact she put such a level of consistency, passion, and dedication into her work evoked the same reaction from everybody around her -- to do their best. She was also called on in extraordinary circumstances to heal our country after the terrorist attacks of 9/11. People forget the level of anxiety that we have felt. Students at this university were children when this happened. They live closer here in the location of course where some of the worst of the attacks happened, but still, we need to remind each and every generation the shock and the grief and the anxiety that we all felt. One of her friends, at the time she became First Lady said, “Oh, I feel so sorry for you. You are giving up all of your privacy.” But after 9/11, that same friend called her and said, “I'm jealous of you, Laura. You can do something, where the rest of us in the country felt so helpless.” She led so many initiatives that people don’t know about – for example, the Heart Truth campaign to promote women’s heart health. If you drink Diet Coke, I want you to look at the side of that can. There's a little red dress symbol on there for the Heart Truth campaign. Laura Bush is the ambassador of that campaign. When she found out that more women die of heart disease than breast cancer, she said, “If I didn’t know that, I don’t think most women in our country do.” You heard the referral to Save America’s Treasures, an initiative started by Hillary Clinton, that Laura Bush continued. She understood her role in the arc of history. Not every program has to be the baby thrown out with the bath water. A good project could be expanded on, it could be continued, it still could be made your own and she did that. She was type-cast from the beginning as being a shy librarian and a teacher leading a conventional life, and how could she possibly have a thought of her own? Yes, she was a wartime First Lady during two difficult and unpopular wars, and a lot of that contributed to the trouble of getting the coverage that she deserved, of the good news stories about her work at home and abroad. But through it all, sharing the good news was never about her. It was so the American people would understand the kind of country, the compassionate and generous

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country that we are and the good people that we have all over these 50 states, and what we do to impact people’s life around the world. So yes, it’s easy to ignore the good work of First Ladies who serve in controversial or difficult times. This whole conference is about the controversial, consequential, and difficult decisions that George W. Bush and his team had to make. Sharing the experiences and stories of those years really is bringing home for all of us that worked there, the level of profound impact that the President’s decisions had on the country and the world.

Anne-Imelda Radice Director, Institute of Museum and Library Services, 2006-2010 Deputy Chairman for Programs, National Endowment for the Humanities, 2005-2006 Chief of Staff to the Secretary of the United States Department of Education, 2003-2005 I had the pleasure of working with Mrs. Bush on a number of projects, but I would like to focus on her work in the arts. President Bush and Laura Bush were people dedicated to the arts. In their administration, the most money ever given out by the government for the arts occurred in the history of arts funding. The second greatest amount of money ever given out for the arts was given out by his father. So, not only did he keep the tradition, he expanded it. But with Mrs. Bush, certain words come to mind - consistency, synergy, compassion, and humanity. When I first encountered Mrs. Bush, I was at the Department of Education as the Chief of Staff. Having a First Lady who is a teacher, who is a librarian, who understands the basic necessities of literacy was not only inspiring to all of us, it helped create a keystone in the “No Child Left Behind” legislation. After I left education, I went to the National Endowment for the Humanities, where I was a Deputy Chairman. And there I saw how Mrs. Bush was developing a very consistent and impressive sense of working together, because this was really the first time that the Heads of the Endowment of the Arts, the Endowment of the Humanities, the Director of the Institute of Museum and Library Services, and the Head of the President’s Committee on Arts and Humanities actually met together, actually worked together, and came up with things that each could support. With regard to the humanities - the National Endowment for the Humanities, when I was there, I was very involved with the digitization project. Now digitization is something that just rolls off our tongues now. I mean, it’s something every library has or everyone’s trying to get money for and everyone knows about it. We’re living in the digital age. Well, this was ahead of the curve. And this was because Mrs. Bush felt very strongly about it, and it became a major initiative. And what was so intriguing about it was there were a million different ideas about how to digitize things. Whether it was photographs. Whether it was art works. Whether it were books, archives, whatever. And Mrs. Bush said, “I think it would be a good idea if we developed a standard way of doing this,” because, indeed, lots of people had these projects, but no one could read all of them on one reader or see them in one setting. Now, that may sound a little bit boring, but, believe me, it changed the course of the way this is handled in libraries, and in archives. When I was chosen to be the Director of the Institute of Museum and Library Services, one of the first people I called up was Anita McBride, because I needed her wisdom, of course. And we had found that we had $17 million

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in the budget of the agency that somehow no one ever knew anything about. It had just been sitting there. And I wanted to at least, let everybody know we had it. But what did we do? We hit another big problem in the art world. Conservation and preservation and that $17 million dollars became the first, the seed money, to pull people together, first throughout the United States and then throughout the world. While I was the Director of the Institute of Museum and Library Services, we gave out $1 billion in grants, and of that almost $300 million dealt with conservation and preservation. Mrs. Bush helped us think through how we pulled all of this together. She was the chairman of this approach. With her help, we created a network of museum directors and conservators and curators, librarians, also archivists. People who would never in their wildest imaginations call the other people up. Well, now they knew each other. They’d had a drink together. They’d had lunch together. All of that came directly from Laura Bush’s … instigation is a strong word, but, yes, instigation. The one thing that I hope that people begin to understand, besides this list of achievements, was that Mrs. Bush is a person who really cares and walks the walk. She’s the person you can depend on. She’s the person who understands what it’s like to be in a small town or to have the platform of the world. She’s someone that we will always be proud of, and I feel especially honored that I had the chance to work with her. Thanks so much.

Adair Margo Chairman, President’s Committee on the Arts and the Humanities, 2001-2008 If Laura Bush were to walk in this room, I think one thing you hear over and over is, everybody would just try to be better. She’s one of those extraordinary presences that just inspire other people by her mere presence to do the best you can. When I first met Laura Bush, it was in my hometown in 1995. I’m from El Paso, Texas, which is where her mother is from, and her husband had just been elected the Governor of Texas. And what I remember most, it was at a reception at the University of Texas at El Paso, was those penetrating blue eyes, and the way she listened more than she spoke. When Laura founded the Texas Book Festival in Austin, which grew into this premier U.S. literary event with hundreds of authors sharing with tens of thousands of audience members, she took it on the road. And when she took it on the road she brought it back to El Paso, again, to honor Tom Lea and José Cisneros and other El Paso artists. One thing you’ll learn about her is when she meets someone she admires she’ll never forget them. They become like a thread that is woven through her life. The Texas Book Festival became the model for the National Book Festival at the Library of Congress, which just celebrated its 15th anniversary. After asking me to chair the President’s Committee on the Arts and the Humanities in 2001, she attended our first meeting and her words were few. She never … she’s not professorial, really. She’s just very brief and to the point. And what she told us is, “Time in short, you better get going.” So we did, realizing this is the truth of coming into government service, realizing that if we try to do something on our own that no one else was doing, we would’ve wasted too much time trying to figure out what that was. And so, knowing her, we took another tack asking how we might help. We had many partners, all the institutions that

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have anything to do with arts and culture, the humanities in the United States, including the Smithsonian Institution, the Kennedy Center. But our primary partners were the National Endowment for the Arts [NEA], the National Endowment for the Humanities [NEH], and the Institute of Museum and Library services which Anne [Radice] chaired. We found out that all of them were interested in international cultural diplomacy, but their budgets had no leeway really for cross-border collaborations. And since we raised our money privately, we did get a little bit of government money, but most of our money was raised privately, we were free to help them out. We were able to add an international component to such things as the Big Read of the NEA. It didn’t just happen in the United States, it happened in Mexico and China, it happened in Egypt. Picturing America with the NEH was taken to Mexico and then focused on collections, and we did many international components of focusing on collections and conservation and preservation. It was natural for me, a border girl. I’m from El Paso. Our closest neighbor is Juarez, Mexico. So once I got to Washington I was thinking, “Where are my Mexican friends?” So one of the first things we did when I became chair, we did award ceremonies called “Coming up Taller Awards,” where arts programs for youth are recognized. Willie Reale, who’s an actor and theater artist, engaged children in summer theater in Hell’s Kitchen in New York and he once observed that while he couldn’t project forward and see what the experience was going to do for these children in the future … he could see the joy in their eyes when they participated and he could swear when they took their final bow that they came up taller, and that’s how the awards got their name. We used to do the ceremony on Capitol Hill. In the Clinton administration, it was a program started then. We moved it into the White House at Mrs. Bush’s invitation and we began recognizing programs for Mexico that first year, and then we recognized programs in China, and then we recognized programs from Egypt. And at our last Coming up Taller Awards, English, Spanish, Chinese and Arabic were all spoken. When immigration rhetoric was particularly strident on Capitol Hill one year, I remember the Mexican ambassador turning off his telephone before things started and he said, “I don't want to be distracted from this wonderful experience, which is what the real relationship between Mexico and the United States is all about and that is wanting the best for children.” So another thing about Mrs. Bush's leadership is she has always worked for the best of the world’s children. When Mrs. Bush says, “Time is short, get going,” she means what she says. She trusts others and people respond. After leaving the White House, she means it still, as she continues to lead. One area I’ve been involved in is a women’s initiative of the Bush Institute, in which she is the Chair. Beginning with two classes of Egyptian women, the Bush Institute has brought them to SMU [Southern Methodist University] in Dallas to learn about writing mission statements and setting goals. And based upon a SMU professor’s research, how to build a network - the single most important measurement of any woman’s success. The women are paired with a mentor and sent across the United States to learn about business, social media, the law and politics, as well as our own country’s struggle to achieve a democracy. They visit their mentor’s hometown and build networks, learning how to cascade their new knowledge to women back in Egypt. So, yes, it is true that when Laura Bush leads, good things multiply.

LIST OF CONTRIBUTORS *Positions for officials who served in the George W. Bush administration are listed before each speaker’s commentary in the volume.

PETER BAKER is Jerusalem Bureau Chief for The New York Times. He previously served as the Times’s White House Correspondent. Before joining the Times, he worked for two decades at The Washington Post, where he covered the presidencies of Bill Clinton and George W. Bush. During that time, he also served for four years as Moscow Bureau Chief. For his reporting on the Bush presidency, he received the Gerald R. Ford Prize for Distinguished Coverage of the Presidency. MEENA BOSE is Executive Dean of Hofstra University’s Peter S. Kalikow School of Government, Public Policy and International Affairs, and the Director of Hofstra’s Peter S. Kalikow Center for the Study of the American Presidency. She is the author or editor of many books on the American presidency and American politics. JOHN M. BRIDGELAND is CEO of Civic Enterprises and Co-Chair of the Franklin Project at The Aspen Institute. He is author of Heart of the Nation: Volunteering and America’s Civic Spirit (Rowman and Littlefield, 2012). DAVID B. COHEN is Professor of Political Science and Fellow in the Ray C. Bliss Institute of Applied Politics at The University of Akron. He has authored and edited numerous books, book chapters, and scholarly articles on the American presidency and is a frequent media contributor on national and Ohio politics. DANA COOPER is Associate Professor of History at Stephen F. Austin State University. Specializing in women's, gender, and transatlantic history, she has presented papers in England, Holland, and Austria, and has published with presses in Sweden, the Netherlands, and the United States. Her most recent works include Informal Ambassadors: American Women, Transatlantic Marriages, and Anglo-American Relations 1865-1945, and two edited volumes, Motherhood and War: International Perspectives, and Transatlantic Relations and Modern Diplomacy: An Interdisciplinary Examination.

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GRAHAM G. DODDS is Associate Professor of Political Science at Concordia University in Montreal, Canada. He previously worked as a research fellow at the Brookings Institution and as a legislative assistant at the U.S. House of Representatives. He has published widely on American political development and the use of unilateral presidential directives, among other topics. JOHN J. DIIULIO, JR. is Frederic Fox Leadership Professor of Politics, Religion and Civil Society, and Professor of Political Science at the University of Pennsylvania. He is the Director of Penn’s Robert A. Fox Leadership Program and Program for Research on Religion and Urban Civil Society. DANE S. EGLI is Senior Advisor for National Security Strategies, Johns Hopkins University Applied Physics Laboratory. He served as Director for Counterterrorism, Drugs, and Latin America on the National Security Council from 2004-2006. DONNA R. HOFFMAN is Head of the Department of Political Science and Associate Professor at the University of Northern Iowa. Her research focuses on presidential rhetoric, electoral behavior, and congressional-presidential relations. Hoffman is the co-author of Addressing the State of the Union: The Evolution and Impact of the President’s Big Speech (Lynne Rienner). In addition, her research has appeared in PS: Political Science and Politics, American Behavioral Scientist, Social Science Quarterly, and Political Research Quarterly. ALISON DANA HOWARD is Assistant Professor of Political Science at Dominican University of California and Chair of the Department of Political Science and International Studies. Her research focuses on presidential rhetoric, pedagogy, and art, politics, and culture. Howard is the co-author of Addressing the State of the Union: The Evolution and Impact of the President’s Big Speech (Lynne Rienner). Her research can also be found in Journal of Political Science Education, PS: Political Science and Politics, American Behavioral Scientist, and Social Science Quarterly NANCY KASSOP is Professor of Political Science and International Relations at the State University of New York at New Paltz. She is the author of many journal articles and book chapters on issues at the intersection of the presidency and law. ALAN C. LOWE is Director of the George W. Bush Presidential Library and Museum. He previously served as Executive Director of the Howard H. Baker, Jr. Center for Public Policy, interim Director of the Franklin D. Roosevelt Presidential Library, and as an archivist at the Ronald Reagan Presidential Library. He also served in the Office of Presidential Libraries, helping to oversee twelve Presidential libraries around the country. ADAIR MARGO is Founder and President of the Tom Lea Institute. She received the Presidential Citizens Medal from President George W. Bush in 2008 and the Aguila Azteca, the highest recognition given by the Mexican government to a non-Mexican citizen, in 2007.

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ANITA B. MCBRIDE is Executive-in-Residence at the Center for Congressional and Presidential Studies in the School of Public Affairs at American University in Washington, D.C. She served in the White House for two decades and in three presidential administrations. In addition to serving in the George W. Bush administration, she served as Director of White House Personnel under Presidents Ronald Reagan and George H.W. Bush, and as Director of the U.S. Speaker’s Bureau at the United States Information Agency. MICHAEL NELSON is Fulmer Professor of Political Science at Rhodes College, a Senior Fellow at the University of Virginia’s Miller Center, and Senior Contributing Editor and Book Editor of the Cook Political Report. He is the recipient of the American Political Science Association’s 2015 Richard E. Neustadt Award for Outstanding Book on the Presidency and Executive Politics published in the previous year, for Resilient America: Electing Nixon in 1968, Channeling Dissent, and Dividing Government. He and his former student and colleague, John Lyman Mason, won the Southern Political Science Association’s 2009 V.O. Key Award for Outstanding Book on Southern Politics for How the South Joined the Gambling Nation: The Politics of State Policy Innovation. TERRY O’SULLIVAN is Director of the Center for Emergency Management and Homeland Security Policy Research and Associate Professor of Political Science at the University of Akron. His research focuses on homeland security, particularly global public health security policy. JAMES P. PFIFFNER is University Professor of Public Policy at George Mason University. He is the author or editor of several books and articles on the American presidency and American government, including The Strategic Presidency: Hitting the Ground Running (2d rev. ed., University Press of Kansas, 1996), and Power Play: The Bush Presidency and the Constitution (Brookings Institution Press, 2009). He is an elected member of the National Academy of Public Administration. ANNE-IMELDA RADICE is Executive Director of the American Folk Art Museum in New York City. She has worked as a curator, administrator, and director in cultural and nonprofit organizations throughout her career. Before serving in the George W. Bush and Barack Obama administrations, she was the first Director of the National Museum of Women in the Arts; Curator of the U.S. Capitol, Office of the Architect of the U.S. Capitol; and Assistant Curator, National Gallery of Art. STANLEY A. RENSHON is Professor of Political Science and Coordinator of the Interdisciplinary Program in the Psychology of Social and Political behavior at the City University of New York Graduate Center. He is also a certified psychoanalyst. ANDREW RUDALEVIGE is Thomas Brackett Reed Professor of Government at Bowdoin College. His books include the Neustadt prize-winning Managing the President’s Program (Princeton, 2002); The New Imperial Presidency: Renewing Presidential Power after Watergate (Michigan, 2005); edited volumes on the George W. Bush legacy and the Obama Presidency; and, with Joseph Pika and John Maltese, The Politics of the Presidency

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(9th ed., CQ Press, 2016). He writes frequently on national politics as a contributor to “The Monkey Cage” blog on the Washington Post website. ROBERT J. SPITZER is Distinguished Service Professor and Chair of the Political Science Department at SUNY Cortland. He is the author of fifteen books, including The Presidential Veto (State University of New York Press, 1988), President and Congress (Temple University Press, 1992), The Presidency and the Constitution (with Michael A. Genovese; Palgrave Macmillan, 2005), and Saving the Constitution From Lawyers (Cambridge University Press, 2008). JUSTIN S. VAUGHN is Associate Professor of Political Science at Boise State University. He has published five books, including Czars in the White House: The Rise of Policy Czars as a Presidential Management Tool, co-authored with José D. Villalobos (University of Michigan Press, 2015). PETER WEHNER is Senior Fellow at the Ethics and Public Policy Center. He writes for numerous publications on politics, culture, religion, and national security, and he is co-author (with Michael J. Gerson) of City of Man: Religion and Politics in a New Era (Moody Publishers, 2010), and co-author (with Arthur C. Brooks) of Wealth and Justice: The Morality of Democratic Capitalism (AEI Press, 2010). He is a contributing opinion writer for the New York Times, and he is a regular contributor to Commentary magazine’s blog “Daily Commentary.” DAVID YALOF is Professor and Department Head of Political Science at the University of Connecticut in Storrs. His first book, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (University of Chicago Press, 1999), won the 1999 Richard E. Neustadt Award as the best book on the presidency from the American Political Science Association’s Presidency Research Group. More recently he authored Prosecution among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing (Texas A&M University Press, 2012).

INDEX # 20th century, xiii, xv, 170 21st century, 90, 112 9/11, vi, xi, xiii, xiv, 4, 6, 7, 13, 21, 22, 27, 52, 62, 63, 69, 83, 101, 102, 103, 105, 107, 110, 111, 112, 113, 114, 115, 119, 126, 128, 133, 134, 135, 136, 137, 138, 142, 144, 145, 146, 147, 149, 150, 153, 154, 155, 157, 163, 187, 190, 198 9/11 Commission, xiv, 150, 157, 163

A abolition, 104 abuse, 42 access, 27, 50, 135, 139, 140, 142, 150, 155, 159, 160, 189 access to recovery (ATR), 94, 95, 96 accountability, 5, 29, 64 accounting, 66, 69, 115, 116 activism, 27, 180, 183, 185, 188, 189 Adams, John, 181 adaptation, 146 Addington, David, 10, 21, 27 adjustment, 108 administration, v, vii, viii, xi, xii, xiii, xiv, xv, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 38, 40, 41, 42, 44, 45, 46, 49, 50, 52, 53, 54, 61, 63, 68, 70, 71, 73, 78, 84, 88, 90, 92, 94, 97, 99, 100, 108, 109, 110, 111, 112, 113, 114, 115, 116, 118, 120, 121, 123, 127, 133, 134, 135, 136, 137, 138, 139, 141, 142, 143, 144, 145, 146, 148, 149, 150, 151, 153, 154, 155, 156, 159, 160, 161, 163, 165, 166, 167, 168, 169, 171, 172, 173, 174, 176, 177, 178, 199, 201, 203, 205 Administration for Children and Families, 100 administrative presidency, v, 17, 18, 22, 23, 29, 30

adulthood, 106, 124 adults, 186 Advice and Consent, 180 advocacy, xv, 9, 40, 41, 42, 65, 188, 189 affirmative action, 179 Afghanistan, vii, xiii, xiv, 18, 78, 144, 153, 154, 159, 160, 161, 164, 183, 185, 188 Africa, 65, 109, 125, 185, 189, 194 African Americans, 74, 76 age, 41, 68, 167, 174, 180, 199 agencies, xiv, 6, 17, 20, 21, 23, 24, 26, 27, 30, 35, 38, 45, 91, 94, 99, 124, 126, 134, 136, 138, 139, 140, 141, 142, 143, 144, 150, 155, 157, 158, 159 aggression, 107, 148 AIDS, 50, 65, 67, 128, 185, 189 Air Force, 136, 158 airline industry, 138 Alito, Samuel J. , xv, 20, 31, 37, 38, 165, 177, 180 altruism, 112 ambivalence, 145, 169 American Presidency, viii, 43, 44, 45, 85, 98, 162, 163, 164, 203 anger, 50, 51, 80, 107 annual rate, 75 anthrax, 136, 147, 156 anthropology, 128 anxiety, 198 appointees, xi, 23, 24, 25, 31, 170, 171, 172, 173, 175 appointment process, 166, 170, 174, 175 appointments, 17, 20, 23, 24, 27, 31, 35, 57, 61, 62, 79, 82, 157, 170, 174, 175, 177, 178, 179 appropriations, 21, 22 Appropriations Act, 30 Appropriations Committee, 149, 156 architect, 40, 46 Arctic National Wildlife Refuge, 62 armed forces, 146 Article II, 7, 8, 18, 29, 33, 35, 37, 39, 41, 43

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articulation, 22, 66, 68 Ashcroft, John, 9, 10, 61 aspiration, 103 assassination, 154 assertiveness, xvi assessment, vii, 62, 64, 66, 71, 111, 124, 166, 173 assets, 112 Associate Justice, 166, 171 asymmetry, 34 attitudes, 165, 166, 175 Attorney General, 6, 7, 9, 10, 11, 12, 15, 25, 31, 37, 143, 166, 176 Austria, 203 authenticity, 191 authorities, 11 authority, xi, xii, xiv, 3, 7, 8, 9, 11, 13, 18, 19, 21, 22, 23, 25, 28, 29, 31, 34, 36, 69, 94, 109, 139, 140, 141, 143, 155, 157, 159, 160, 162, 172, 179 authorization for use of military force (AUMF), 7, 8, 13, 21 autonomy, 17, 19, 28 aversion, 65 avian, 147 avoidance, xi, 177 awareness, 146, 185, 186, 189

B backlash, 171, 172, 180 balanced budget, 67 Baldacchino, Joseph, 42, 46 Ball, Andi, 187, 192 ban, 21 bandwidth, 145 bankers, 108 banks, 64 bargaining, 36, 37, 42 barriers, 90 Barron, David J. , 12, 15 base, 6, 61, 67, 74, 97, 124, 128 Bellinger, III, John, 4, 9, 10 benchmarks, 26 beneficiaries, 123 benefits, 12 benign, 156 bias, 65 bible, 128 Bin Laden, Osama, 107 biological weapons, 136 blind spot, 108 blogs, 86 blue-collar workers, 74 blueprint, 8, 149

board members, 27 Border Patrol, 137, 141 Bork, Robert, 166, 169 bounds, 43, 60, 191 Bowen, Stuart, 9 Bradbury, Steven, 11 breast cancer, 185, 186, 189, 192, 194, 198 breeding, 40 brutality, 188 budding, 82 budget allocation, 140 bureaucracy, 19, 20, 22, 31, 38, 41, 42, 45, 141 Burma, 185, 189, 194 Bush, Barbara, 117, 184, 185, 186, 197 Bush, George W., v, vi, vii, viii, xi, xii, xv, 1, 3, 4, 17, 19, 20, 23, 29, 30, 31, 33, 37, 38, 42, 45, 49, 52, 55, 57, 60, 61, 62, 63, 64, 66, 69, 70, 71, 72, 73, 76, 85, 87, 88, 99, 100, 102, 104, 106, 113, 115, 116, 117, 119, 121, 123, 125, 127, 128, 131, 133, 134, 138, 147, 153, 154, 155, 161, 162, 163, 164, 165, 168, 173, 175, 177, 180, 192, 193, 194, 197, 199, 203, 204, 205 Bush, Laura, vi, xv, 183, 184, 185, 190, 191, 192, 193, 194, 195, 197, 198, 199, 200, 201 Bush, President, xi, xii, xiii, xiv, xv, xvi, 18, 21, 28, 29, 37, 49, 50, 51, 53, 57, 63, 71, 82, 84, 101, 111, 115, 116, 119, 124, 127, 128, 134, 138, 139, 140, 142, 146, 148, 149, 154, 156, 157, 158, 160, 161, 173, 175, 176, 177, 178, 179, 192, 199 Bush, President George Herbert Walker, 59 Bush, President George Walker, v, vi, vii, viii, xi, xii, xv, 1, 3, 4, 17, 19, 20, 23, 29, 30, 31, 33, 37, 38, 42, 45, 49, 52, 55, 57, 60, 61, 62, 63, 64, 66, 69, 70, 71, 72, 73, 76, 85, 87, 88, 99, 100, 102, 104, 106, 113, 115, 116, 117, 119, 121, 123, 125, 127, 128, 131, 133, 134, 138, 147, 153, 154, 155, 161, 162, 163, 164, 165, 168, 173, 175, 177, 180, 192, 193, 194, 197, 199, 203, 204, 205 Bybee, Jay, 6, 10

C Cabinet, 24, 30, 124, 126, 134, 138, 140, 142, 160, 161 cabinet members, 23 calculus, 36 campaigns, 81, 122, 185, 186 cancer, 185, 186, 189, 192, 198 candidates, 24, 74, 75, 79, 80, 82, 84, 157, 175, 176, 177 capital gains, 62, 128 Capitol Hill, 75, 108, 119, 125, 127, 128, 133, 187, 201

Index carbon, 27, 62 carbon dioxide, 27, 62 caregivers, 186 caregiving, 192 caricature(s), 58, 64 Carter, President Jimmy, 74, 168 Carter, Rosalynn, 198 case law, 41 case study, 88 catalyst, 19, 69, 133 categorization, 68 category d, xiii Catholics, 75, 83 CATO, 18, 29, 42, 47, 63, 71 cattle, 24 caucuses, 80 CBS, 71, 117, 149 Central Intelligence Agency (CIA), 4, 11, 12, 15, 50, 51, 143, 145, 148, 149, 154, 157, 158, 161, 163 cervical cancer, 190 challenges, xii, xiv, 52, 66, 112, 133, 134, 141, 153, 162, 190 chaos, 160 charitable choice, 92, 94, 96, 125 charities, 91, 93, 94, 121 checks and balances, 3, 5, 33, 36, 39, 41, 42 chemical(s), 27, 107, 136, 147 Cheney, Dick, xi, 19, 41, 45, 46, 61, 62, 157 Chicago, 32, 44, 45, 46, 108, 115, 117, 148, 149, 180, 181, 206 Chief Justice, xv, 167, 170, 171, 172, 173, 178, 179, 180, 181 chief legislator, v, 87, 88, 89, 90, 95, 96, 98, 100 Chief of Staff, 5, 50, 119, 164, 174, 187, 197, 199 childhood, 186, 187 children, xv, 63, 91, 94, 100, 122, 123, 125, 184, 185, 186, 187, 188, 190, 193, 198, 201 Chile, 118 China, 201 Christians, 83, 92 circulation, 177 cities, 194 citizens, 13, 22, 92, 95, 142, 147, 151 citizenship, 66, 90, 92, 95, 96 civil liberties, 154 civil rights, 31, 59, 65, 74, 169, 174 civil service, 24 Civil War, 22, 78, 138, 168 clarity, 20, 179 classes, 201 classification, 154 Clean Air Act, 27 clients, 9, 186

209

climate, 27, 50, 135, 197 climate change, 27, 50, 135 Clinton Administration, 136, 137, 143 Clinton, Bill, 19, 20, 23, 36, 44, 62, 67, 75, 92, 106, 136, 168, 169, 181, 185, 203 Clinton, Hillary Rodham, 184, 185, 190, 191, 198 Clinton, President William Jefferson, 25, 63 Clinton, Senator Hillary, 185, 190, 191, 198 Coast Guard, 137, 141, 143 cognitive development, 187 Cold War, 75, 79, 163 collaboration, 155, 186 College Station, 31, 44, 45, 191 color, 57, 156 commander-in-chief, 7, 8, 9, 41, 43 commander-in-chief clause, 7, 8 common sense, 166 communication, 87, 121, 141, 155, 198 communism, 145 communities, 60, 83, 89, 90, 97, 186 community, 4, 9, 61, 90, 91, 92, 110, 121, 139, 146, 157, 158, 159, 162, 186, 194 community solutions act, 91 compassion, 90, 91, 92, 94, 95, 96, 99, 122, 199 compassion capital fund (CCF), 91, 92, 94, 95, 96, 97, 100 compassionate conservatism, 60, 67, 88, 90, 92, 121 compensation, 106 competing interests, 186 competition, 113 complexity, 52, 106 composition, 177 conception, 37 conference, vii, viii, 97, 116, 156, 164, 187, 199 configuration, 137 conflict, 13, 20, 157, 160, 161 confrontation, 169 congress, xi, xii, xiii, xv, 3, 5, 6, 7, 8, 9, 11, 12, 13, 18, 19, 20, 21, 22, 25, 28, 29, 31, 34, 35, 36, 38, 39, 41, 42, 43, 44, 45, 51, 63, 65, 73, 75, 76, 77, 78, 79, 80, 81, 82, 84, 87, 88, 89, 90, 91, 93, 94, 95, 96, 97, 98, 99, 100, 109, 113, 116, 117, 120,134, 136, 138, 139, 140, 141, 142, 144, 145, 146, 149, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 178, 187, 200, 206 congressional contests, 82 consensus, vii, 17, 29, 51, 65, 125, 133, 146, 159, 167 consent, 51 conservation, 200, 201 conservative principles, 58 Consolidated Appropriations Act, 20 conspiracy, 136

210

Index

constituents, 120, 175 constitution, v, vii, xi, xii, xv, 1, 7, 8, 13, 18, 20, 28, 29, 30, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 125, 162, 168, 180, 205, 206 constitutional issues, 175 constitutional limitations, 21 constitutional principles, 12 construction, 39 consumers, 179 controversial, vii, xi, xii, 3, 6, 9, 17, 18, 51, 57, 58, 77, 107, 144, 167, 169, 174, 179, 180, 199 controversies, 175 convention, 39, 76, 81, 84 conversations, 120, 166, 189 conviction, 63, 107 cooperation, 21, 93, 110, 114, 141, 155, 159, 186, 189 coordination, xiv, 28, 139, 140, 141, 147, 159 correlation, 26, 77, 105 corruption, 161 cost, 25, 77, 109, 124 cost-benefit analysis, 25 counsel, viii, 10, 11, 15, 18, 20, 22, 23, 24, 142, 172 counterbalance, xv counterterrorism, xiv, 3, 4, 6, 10, 12, 13, 102, 147 Court of Appeals, 174, 177 covering, 108 credentials, 63, 171 credit claiming, 89, 95, 97 crises, 52 critical analysis, 136 critical infrastructure, 27 criticism, 6, 37, 42, 57, 60, 64, 92, 118, 154, 158, 160, 184 culture, 8, 60, 62, 83, 103, 114, 127, 146, 201, 204, 206 Customs Service, 137, 141 Czars, vi, xiv, 149, 153, 154, 156, 161, 162, 206 Czech Republic, 115, 116, 193

D danger, 31, 103, 107, 178 Dean, John, 23 death penalty, 62 deaths, 125, 136 decision-making process, 10, 24 deficit, 51, 64, 105 democracy, 51, 112, 116, 177, 201 Democrat, xv, 69, 78, 91, 112, 121, 122, 123, 125, 128, 175 Democratic Party, 84

Department of Defense, 10, 11, 14, 24, 30, 148, 149, 154, 157 Department of Education, 76, 191, 199 Department of Health and Human Services, 100 Department Of Homeland Security (DHS), xiv, 24, 27, 30, 133, 134, 135, 137, 139, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 153, 154, 156, 162, 163 Department of Justice (DOJ), 3, 6, 10, 11, 12, 15, 24, 25, 30, 40, 143, 158 Department of State, 162, 163, 186, 192, 197 depression, 84 depth, xi, 145, 190 deregulation, 24, 74 despair, 112 destruction, 136 detachment, 11 detainees, 10, 14, 28, 42 detention, 4, 10, 12, 13, 51 deterrence, 105, 110, 112 dignity, 19, 60, 128, 188 dioxin, 27 diplomacy, 197, 201 directives, 23, 25, 204 directors, 108, 126, 200 disadvantaged youth, 124 disappointment, 173 disaster, 25, 93, 135, 144 disaster relief, 93 discomfort, 163 discrimination, 25, 74, 94, 95, 96, 121 disposition, 128 distribution, 154 district courts, 13 DNA, 24, 31 doctors, 186 domestic agenda, 90 domestic issues, 93 domestic policy, xii, xiv, 17, 18, 76, 83, 102, 114, 122, 124 Domestic Policy Council, 109, 123, 124 domestic violence, 91 dominance, 34, 35 donations, 81, 93, 186 donors, 81, 82 downsizing, 114 drug abuse, 124 drug addict, 91 drug addiction, 91 drug treatment, 92, 94

211

Index

E earthquakes, 147 Eastern Europe, 75 economic growth, 75 economics, 83 educated women, 188 education, vii, xiii, xv, 24, 64, 67, 76, 78, 102, 171, 178, 183, 184, 185, 186, 187, 190, 191, 198, 199, 204 education reform, vii, 67, 76, 78, 190, 198 educational opportunities, 183, 188 educators, 188 EEOC, 169 Egypt, 117, 201 Eisenhower, Dwight David, 74 election, xi, xiii, 51, 64, 69, 71, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 87, 88, 95, 97, 104, 108, 113, 151, 160, 169, 177, 179 elementary school, 183, 184 elementary students, 187 emergency, xi, 4, 5, 7, 39, 137, 145 emergency management, 145 employees, 12, 24, 25, 80, 150, 156 employment, 36 empowerment, 189 encouragement, viii endorsements, 174 enemies, 112, 156 enemy combatants, 13, 22, 38, 154 energy, xiii, 7, 21, 27, 28, 124, 127, 154, 189 enforcement, 23, 25, 27, 45 England, 203 enrollment, 191 environment, 5, 32, 63, 74, 93, 135, 147, 177, 189 environmental policy, 62 environmental protection, xiii Environmental Protection Agency (EPA), 25, 27, 32 environmental regulations, 62 equipment, 161 ERA, 52 erosion, 13, 19, 38, 68, 71 ethics, 18 Europe, 104, 116, 147, 193 evidence, 26, 35, 41, 43, 70, 103, 109, 124, 125, 159, 171, 172, 173, 174, 178, 190 evolution, 22, 34, 35, 40, 135, 188 exclusion, 96 execution, xii, 17, 108, 144, 160 executive branch, xi, xiv, 3, 5, 6, 7, 9, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 35, 41, 42, 94, 134, 137, 139, 140, 141, 142, 143, 147 executive function, 20

executive memoranda, 23, 27 executive office of the president (EOP), 22, 27, 134, 138, 139, 145, 157 Executive Order(s), 12, 15, 17, 18, 22, 25, 29, 31, 88, 90, 94, 109, 126, 133, 136, 138, 143, 149, 155, 159 executive power, xi, xii, 4, 5, 6, 7, 8, 12, 18, 19, 20, 21, 22, 28, 33, 37, 38, 39, 40, 43, 44, 49, 68, 88, 94, 96, 98 exercise, 8, 9, 17, 34, 36, 38, 39, 64, 114 exit poll, 76 expertise, ix, 26, 145, 148, 158, 161 expulsion, 36 external shocks, 23 extremist movements, 151

F failed states, 147 fairness, 65 faith, xii, xiii, 13, 28, 29, 60, 61, 67, 78, 80, 83, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 108, 120, 121, 122, 123, 124, 127, 128, 129 faith based initiative, xii faith-based and community initiatives, 29, 90, 94, 99, 100, 126 families, 60, 62, 91, 95, 157, 183, 185, 186, 188, 190, 197 family planning, 25 far right, 61 FBI, 25, 29, 148, 154, 158, 163 FDR, 53, 81, 123 fear, xi, 186 federal agency, 172 federal aid, 94 federal courts, 5, 35, 62 Federal Emergency Management Agency (FEMA), 45, 137, 144, 150 federal funds, 92 federal government, 46, 60, 76, 96, 121, 138, 140, 142, 171, 178 federal Judicial Center, 85 federal judiciary, 61 federalism, 25 federalist papers, 37, 44, 45 federalist society, 37, 38, 40, 45, 46, 62 Fein, Bruce, 42, 45, 46 films, 185 financial, xiii, 18, 52, 54, 66, 84 financial crisis, 52, 54, 84 financial institutions, xiii, 66 financial sector, 18 First Amendment, 44

212

Index

First Lady, vi, xv, 117, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 197, 198, 199 first responders, 139 Fisher, Louis, 30, 34, 44, 45, 46 fixation, 184 flaws, 9 flexibility, 24, 67, 146 force, 7, 8, 19, 21, 25, 27, 28, 35, 74, 78, 80, 105, 114, 124, 155, 160 Ford, xii, 5, 19, 29, 58, 169, 203 Ford, Gerald Rudolph, 5, 19, 169, 203 foreign affairs, vii, 187 foreign aid, 25 Foreign Intelligence Surveillance Act (FISA), 5, 22, 42 foreign nationals, 13, 136 foreign policy, xiii, xiv, 7, 21, 22, 62, 79, 81, 101, 102, 104, 105, 108, 109, 112, 113, 114, 147, 190 forest fire, 147 formation, xv, 9, 146 formula, 69 Fortas, Abe, 173 foundations, 92, 101, 102, 170 framing, 103, 144 free world, 197 freedom, 107, 112, 189, 197 friction, xv, 34, 139 friendship, 156 funding, 20, 26, 65, 76, 91, 94, 123, 126, 140, 199 funds, xii, 62, 81, 91, 92, 100, 125

G Gallup Poll, 82 GAO, 22, 27, 30 Gellman, Barton, 13, 30, 31 general election, 75, 82 general services administration (GSA), 24, 31 Geneva Convention(s), 4, 9, 22 Georgia, 61, 74, 174 Germany, 116 gestures, 180 global warming, 62 globalization, 19 Goldsmith, Jack, 10, 13, 19, 29 Gonzales, Alberto, 24, 176 Gore, Al, 75, 85, 104, 128 governance, xv, 20, 34, 35, 36, 38, 39, 43, 143, 146, 161 Government Accountability Office (GAO), 22, 27, 30 government intervention, 66 government policy, 27

Governor, xv, 61, 74, 76, 80, 102, 106, 115, 119, 121, 122, 123, 124, 127, 133, 139, 140, 142, 146, 153, 155, 175, 176, 184, 187, 192, 200 grades, 26 Grand National Assembly, 116 grants, 39, 90, 92, 94, 96, 171, 200 grassroots, 76 Great Depression, 138, 154 Greece, 116 growth, 19, 28, 63, 65, 74, 90, 112, 158, 174 Guantanamo, 4, 13, 14, 20, 28, 51, 104 Guantanamo Bay, 13, 20, 104 guessing, 107 guidance, 11, 12, 23, 26, 189 guidelines, 8, 9, 10 Gulf Coast, 143 Gulf of Mexico, 135 gun control, 77, 80

H Hamilton, Alexander, 28, 32, 37, 44 Harvard Law School, 71 Haynes II, William, 11 healing, 95 health, xv, 109, 169, 186, 188, 189, 190, 197, 198 Health and Human Services, 100 health care, 109, 169 Healy, Gene, 42, 47 heart disease, 198 Heiligenstein, Anne, 185, 187, 192 Henry, Lou, 184, 191, 194 heroism, 81 high school, 8, 63, 187 higher education, 191 hiring, 24, 92, 94, 125 history, 3, 18, 20, 23, 41, 42, 53, 70, 76, 78, 80, 84, 85, 86, 99, 104, 109, 113, 115, 126, 127, 128, 136, 138, 148, 166, 170, 171, 172, 173, 175, 178, 185, 187, 192, 197, 198, 199, 203 HIV, xv, 65, 189, 190 HIV/AIDS, 189 Holder, Eric, 11 homeland security, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 146, 147, 148, 149, 150, 153, 156, 205 Homeland Security Act, 133, 135, 142, 143, 144 Homeland Security Council (HSC), xiv, 27, 133, 134, 135, 137, 141, 142, 143, 144, 145, 146, 147, 149, 150, 155 homelessness, 91 homes, 162 Hoover, Herbert Clark, 194

213

Index Hoover, Lou Henry, 184, 191, 194 host, 74, 88, 91, 126, 154 hostilities, 27 hotel, 122 House, xiv, xv, 23, 24, 25, 27, 28, 31, 32, 35, 70, 73, 75, 77, 78, 79, 81, 82, 84, 91, 92, 99, 119, 120, 125, 126, 133, 135, 137, 139, 140, 144, 145, 147, 149, 156, 157, 186, 187, 190, 191, 193, 194, 197, 204, 205 House of Representatives, 35, 73, 92, 99, 156, 157, 204 housing, 92, 136 Housing and Urban Development, 26 human, 128, 146, 158, 189, 198 human right(s), 189, 198 Hurricane Katrina, vii, 18, 29, 54, 69, 84, 133, 134, 135, 136, 143, 144, 148, 177 hurricanes, 147 husband, xv, 183, 184, 185, 186, 187, 188, 190, 191, 192, 200 Hussein, Saddam, xiii, 78, 80, 105, 107, 136 hybrid, 113

I icon, 106 idealism, 92 ideal(s), 104, 114, 120, 156 identification, 60 identity, 64, 101, 105, 115, 184, 185 ideology, xii, xiii, 27, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 70, 110, 165, 168, 169, 170, 173 illegal aliens, 66 illiteracy, 91, 188 illusion, 92 image(s), xv, 141, 151, 183, 185, 191 imagination, 29 IMF, 116 immigrants, 65 immigration, xiii, 49, 50, 65, 67, 84, 109, 117, 128, 136, 201 impeachment, 18, 19, 20, 34, 35, 44, 76 impulses, 68 inauguration, 137, 187, 191 income, 62, 74, 77, 92 income tax, 74 incumbents, 78 indefinite detention, 12 independence, 31, 94, 160 India, 21 individuals, viii, 7, 60, 88, 143, 153, 154, 156, 159, 161, 189, 191 inertia, 23, 147

information technology, xii infrastructure, 91, 135, 146, 148 initiation, 27 inmates, 51 innovator, xiii, 57, 66, 67, 68, 69, 70 INS, 23 inspectors, 136 institutions, 5, 17, 29, 34, 60, 62, 94, 96, 110, 111, 127, 135, 139, 147, 191, 200 integration, 137, 146 integrity, 26, 40, 95, 123 intellect, 176 intelligence, xiv, 58, 106, 134, 138, 143, 145, 146, 148, 153, 157, 158, 159, 161 intelligence gathering, 148 Intelligence Reform and Terrorism Prevention Act, 157 interagency, 133, 141, 146, 160 interest groups, 25, 64, 70, 89, 174, 179 interference, 3, 4, 65 international affairs, 21 international law, 3, 5, 6, 9, 12, 38 international terrorism, 138 internationalism, 101, 115 interpersonal skills, 106 interrelations, 34 interrogation methods, 12 interrogations, 9, 12, 22 Interstate Commerce Commission, 45 intervention, vii, 18 invasions, xiii, 78 Iowa, 46, 80, 85, 87, 204 Iran, 5, 38, 46, 49, 50, 111, 113, 114, 163 Iraq, vii, xiii, xiv, 18, 29, 49, 50, 54, 71, 78, 79, 80, 81, 84, 104, 105, 107, 109, 113, 118, 144, 153, 154, 158, 159, 160, 161, 164, 177 isolation, 34 issues, xv, 20, 23, 26, 27, 50, 51, 53, 54, 59, 67, 70, 74, 79, 83, 90, 93, 94, 103, 108, 109, 120, 121, 122, 127, 128, 135, 139, 143, 144, 145, 158, 166, 167, 174, 176, 183, 185, 186, 187, 188, 190, 192, 204 iteration, 139

J Japan, 136 Jay, John, 13, 44 Jefferson, Thomas, 36, 171 job training, 188 Johnson, Andrew, 36 Johnson, Lady Bird, 186, 197, 198 Johnson, Lyndon Baines, 37, 92, 95, 169

214

Index

Johnson, President Lyndon B., 74 Jordan, 163 journalism, 57 journalists, vii, 57, 184 judicial power, 21, 179 judiciary, xii, 82 Judiciary Committee, 125, 176 jurisdiction, 26, 171 justification, 4, 22, 28, 40

K Kagan, Elena, 17, 29, 169, 181 Kennedy, John Fitzgerald, 83, 154, 169 kill, 20, 118, 151

L labeling, 64 landscape, 59, 165, 166, 167, 168, 170, 175, 178 Latin America, 204 Latinos, 76, 79, 80 law enforcement, 11, 144, 174 laws, xi, xii, 10, 17, 19, 20, 22, 27, 34, 38, 59, 77, 136, 150 lawyers, 3, 6, 8, 9, 37, 38, 40 leadership, vii, viii, xiii, 28, 36, 63, 66, 67, 68, 71, 76, 77, 83, 101, 105, 106, 110, 114, 115, 116, 133, 135, 136, 137, 140, 145, 146, 148, 159, 166, 189, 192, 194, 201 leadership style, 68 learning, xv, 4, 23, 90, 106, 146, 190, 201 learning process, 146 legacy, vi, vii, xv, xvi, 4, 14, 18, 29, 30, 31, 41, 44, 51, 62, 70, 71, 75, 87, 88, 89, 97, 98, 101, 112, 113, 115, 124, 165, 168, 175, 177, 183, 194, 205 legality, 9, 25 legislation, xiv, 5, 34, 36, 41, 62, 65, 74, 84, 88, 90, 91, 94, 102, 109, 128, 136, 149, 155, 156, 158, 186, 199 legislative authority, 34 legislative proposals, 87 lens, 87, 127 Levin, Daniel, 11, 14 liberalism, 174, 181 liberty, 4, 38, 49, 158 librarians, 183, 200 light, 34, 155, 159, 173, 189, 190 Lincoln, Abraham, 138 literacy, xv, 183, 186, 190, 199 litigation, 76 lobbying, 160, 173

local government, 138, 139 Locke, John, 34, 44 Louisiana, 77 Lowi, Theodore J., 35, 45 loyalty, 40, 185

M machinery, 23, 141, 144, 145, 147, 148 Madison, James, 19, 29, 34, 36, 44, 171 magnet, 67 magnitude, 4, 63 major issues, 67 majority, 68, 73, 77, 79, 81, 82, 83, 84, 95, 119, 167, 170, 172, 185 malaria, 125 management, 17, 18, 20, 26, 28, 30, 139, 144, 153 mania, 34 man-made disasters, 145 marital partners, 194 market failure, 26 marketing, 60 marriage, xv, 80, 185, 194 married women, 83 Marshall, John, 171, 174, 178 Marshall, Thurgood, 169, 170 Maryland, 31, 192, 193 mass, 83, 136, 142 materials, 21, 25, 32 matter, 4, 10, 11, 18, 21, 25, 35, 37, 39, 54, 60, 84, 103, 120, 134, 140, 146, 167, 169, 176, 192 McCain, Senator John, 58, 59, 70, 84, 161 measurement, 201 media, 63, 81, 141, 155, 166, 175, 197, 198, 201, 203 median, 58 Medicaid, 122, 178 medical, 186, 189 medical care, 189 Medicare, xiii, 67, 80 medicine, 65 membership, 143 memory, 6, 62, 123 mentor, 91, 201 mentoring, 91 Mentoring Children Of Prisoners (MCP), 94, 95, 96 mentoring program, 91 metamorphosis, 49 metropolitan areas, 74 Mexico, 25, 85, 135, 187, 189, 194, 201 middle east, xiv, 111, 189, 194 Middle East, xiv, 111, 189, 194

215

Index military, vii, xi, xiv, 4, 7, 8, 10, 11, 13, 21, 22, 28, 41, 75, 81, 112, 114, 118, 151, 153, 154, 159, 160, 161, 164 military commissions, 4, 10, 13 military tribunals, xi, 22 minorities, 65, 93 minority students, 65 minors, 176 mission(s), 5, 13, 20, 40, 54, 90, 91, 94, 114, 135, 138, 139, 143, 144, 145, 146, 154, 155, 158, 165, 189, 190, 192, 201 Missouri, 80 misunderstanding, 94 models, 75, 198 moderates, 63, 167, 168, 171, 172, 173 modern society, 49 modifications, 51, 126 modus operandi, 147 mold, xiii, 69, 185 momentum, 180 Morrison v. Olson, 29, 30, 45, 172 Moscow, 203 mother, 106, 122, 183, 184, 191, 192, 193, 198, 200 motivation, 146 MSNBC.com, 29 murder, 142 Muslims, 188 mythology, 49

N naming, 169, 176, 177 narcissism, 106 narcotic, 36 nation building, xiii, 101 National Counterterrorism Center, 158 national interests, 114, 147 National Public Radio (NPR), 72, 150 national security, xii, 4, 5, 8, 9, 11, 51, 53, 75, 78, 79, 83, 111, 133, 136, 137, 139, 142, 143, 144, 146, 147, 148, 149, 156, 157, 158, 159, 161, 206 National Security Agency (NSA), 21, 25, 30, 146 National Security Council (NSC), xiv, 4, 10, 27, 133, 134, 135, 137, 139, 141, 142, 143, 144, 145, 146, 147, 149, 150, 151, 161, 204 national strategy, 138, 148, 155, 163 NATO, 161, 162 natural disaster(s), xiv, 134, 136, 137, 143, 144, 145, 147 needy, 121 neglect, 144 negotiating, 160 negotiation, 160

nerve, 136 Netherlands, 203 Neustadt, Richard, 19, 34, 36 neutral, 13 New Deal, xiii, 22, 37, 41, 62, 74, 171 New Hampshire primary, 80 Nigeria, 189, 194 Nile, 117 Nixon, Pat, 198 Nixon, Richard, 22, 73, 74, 169 No Child Left Behind, xiii, 65, 78, 199 nominee, 58, 73, 74, 75, 77, 79, 83, 84, 108, 156, 166, 167, 174, 176 North America, 61 nuclear weapons, 105, 107, 116

O O’Connor, Sandra Day, 173, 176 Obama, v, xiii, xiv, xv, 11, 12, 28, 31, 32, 36, 50, 51, 52, 69, 70, 84, 86, 101, 102, 103, 104, 105, 108, 109, 110, 112, 113, 114, 115, 116, 117, 118, 129, 135, 137, 144, 145, 150, 151, 154, 161, 162, 164, 167, 168, 169, 175, 178, 181, 191, 205 Obama Administration, 109, 110, 113, 115, 135, 144, 145, 161, 162 Obama, President Barack, xiii, xiv, xv, 12, 28, 36, 50, 51, 70, 84, 86, 101, 103, 104, 108, 112, 113, 114, 115, 116, 117, 118, 137, 144, 145, 151, 154, 161, 167, 168, 169, 178, 205 obedience, 43, 172 objectivity, 26 obstacles, 180 obstruction, 50 office of faith-based and community initiatives, 17, 62, 90, 97, 99, 100, 125, 126 Office of Homeland Security (OHS), 134, 135, 137, 138, 139, 140, 141, 143, 145, 146, 147, 149, 150, 155, 156, 162 Office of Information And Regulatory Affairs (OIRA), 23, 25, 26, 28, 30 Office of Legal Counsel (OLC), xi, 6, 7, 8, 9, 10, 11, 12, 14, 15, 19, 20, 21, 22, 23, 30, 31, 32, 37, 172 Office Of Management And Budget (OMB), 23, 25, 26, 27, 30, 31, 32, 123, 140, 155 officials, vii, viii, xi, xiv, xv, 3, 4, 5, 6, 7, 10, 12, 24, 25, 27, 38, 135, 137, 141, 145, 146, 148, 155, 165, 174, 189, 203 oil, 24, 62, 78, 135, 145 oil production, 78 oil spill, 135, 145 Oklahoma, 136, 138 omission, 9

216

Index

OPA, 52 openness, 122, 178 operations, 139, 147, 153, 154, 158, 161 opinion polls, 191 opportunities, 66, 106, 165, 185, 189 optimism, 105, 158 organize, 18, 80, 108, 133, 138 outreach, 164 overlap, 39, 106, 112, 137 oversight, 4, 8, 26, 38, 150, 155 ownership, 62

P Pacific, 76, 83 Pakistan, 113, 118 Panama, 189, 194 parallel, 31, 39, 146 parenting, 186 parents, 60, 186 parity, 73 Parliament, 35, 104, 116 participants, 5, 146 patriotism, 80 peace, 76, 77, 111, 188 peace process, 111 pedagogy, 204 pedigree, 40, 41 peer review, 40 Pentagon, 7, 21, 78, 137, 151, 157, 158 permission, 158 permit, vii, 6 Persian Gulf, 136 Persian Gulf War, 136 personal history, 184 personal identity, 105 personal relations, 139 personal views, 176 personality, 28, 128, 166, 176, 178 personality traits, 178 persuasion, 17, 36, 37, 41, 42, 166 Philadelphia, 91, 99, 122, 123, 162 photographs, 52, 53, 199 pink ribbon/red ribbon, 190 pleasure, 123, 140, 199 Poe, Edgar Allen, 45 polarization, xii, xv, 18 police, 18 policy, vii, xi, xii, xiii, xiv, xv, 3, 4, 5, 6, 7, 9, 10, 12, 17, 18, 19, 20, 23, 24, 26, 27, 33, 37, 42, 59, 65, 79, 87, 88, 89, 90, 92, 93, 94, 95, 97, 98, 102, 103, 105, 106, 108, 109, 111, 113, 114, 119, 120, 121, 124, 134, 135, 139, 141, 144, 145, 146, 147,

150, 153, 154, 160, 161, 171, 176, 180, 186, 191, 192, 197, 205 policy choice, vii, 7 policy Czars, 154, 161, 162, 206 policy initiative, xv, 79, 102 policy issues, 90, 94, 197 policymaking, xi, xii, 87, 88, 94, 120 policy problems, 89 policy reform, 103 policymakers, 137 political enemies, 23 political leaders, xi political parties, xv, 70, 81 political party, 84 political power, 34, 36 politics, vii, viii, xiii, xiv, xv, 4, 8, 36, 37, 42, 43, 50, 62, 68, 70, 75, 84, 102, 106, 119, 120, 123, 140, 144, 147, 154, 157, 161, 165, 169, 172, 178, 180, 181, 186, 197, 201, 203, 204, 206 polling, 51, 82, 85 popular support, 78 popular vote, 75, 81, 82 population, 85, 124, 148, 191 portfolio, 119, 135, 159, 160, 190 position taking, 89 poverty, 92, 96, 188 Powell, Colin, 4, 9 power relations, 34 pragmatism, 66 precedent(s), xv, 9, 13, 28, 167, 172, 173, 174, 176, 179, 180 pregnancy, 91 preparation, 144, 190 preschool, 186 prescription drugs, 67 preservation, 200, 201 presidency, vii, viii, ix, xi, xii, xiii, xv, 3, 5, 8, 13, 17, 18, 19, 22, 23, 29, 33, 34, 35, 36, 37, 38, 40, 41, 42, 44, 49, 54, 57, 61, 62, 63, 65, 66, 68, 69, 70, 75, 76, 78, 82, 87, 96, 97, 98, 101, 102, 103, 105, 109, 115, 118, 120, 127, 143, 153, 154, 161, 162, 163, 164, 168, 177, 184, 187, 191, 203, 204, 205, 206 President’s Emergency Plan For Aids Relief (PEPFAR), 50, 65, 128, 185, 189 President’s Malaria Initiative (PMI), 125, 185 President’s Management Agenda (PMA), 26 presidential administration, 29, 30, 31 presidential authority, xi, 19, 66 presidential campaign, 60, 102, 108, 112, 123 presidential directives, 31, 136 presidential veto, 36 prestige, 142, 159, 171, 172, 173, 178, 179

Index prevention, 110, 124 primacy, xiii, xiv, 34, 101, 112, 114, 115 primary school, xv principles, 13, 40, 41, 60, 64, 116, 118, 141, 166, 167, 175 prior knowledge, 4, 9, 10 prisoners, 21, 91, 122, 123, 174, 190 private good, 64 private investment, 62 private sector, 141, 155 privatization, 26 procurement, 17 professionals, xi, 40, 147 profit, 121, 123, 125, 205 programming, 53 progressive era, 22 progressive tax, 64 progressive tax system, 64 project, 5, 52, 88, 90, 95, 96, 97, 98, 100, 118, 146, 148, 187, 190, 194, 198, 199, 201 proliferation, 108, 116 promoter, 186 proposed regulations, 25 proposition, 35, 120 prosperity, 76, 77 protection, 74, 148, 156 Protestants, 77 psychology, 101, 102, 106, 115 public administration, 121 public awareness, 186 public concern, 149 public financing, 82 public health, xiv, 147, 205 public life, 19, 127, 184 public opinion, 88 public policy, vii, xv, 88, 89, 90, 96, 133, 145, 146 public service, 106 public support, xiii, 3 punishment, 21 purity, 23, 66

Q qualifications, 13, 21 questionnaire, 26

R race, 106, 172 racism, 104 radicalism, 107 radicalization, 151

217

radio, 89, 91, 92, 93, 96, 140, 188, 193, 198 rate of return, 116 ratification, 18 reactions, 10 reading, 33, 39, 42, 43, 44, 178, 184, 186, 190 Reagan, Ronald, 23, 37, 61, 64, 68, 74, 117, 170, 198, 204, 205 realism, xiii, 111 reality, 35, 36, 49, 63, 65, 106, 144, 154, 155, 173, 190, 194 reasoning, 7 recall, 22 reception, 200 recess appointment, 24, 31 recognition, 29, 114, 165, 204 recommendations, 25, 26, 140 recovery, 143 reelection, 74, 75, 80, 82, 83, 84, 88, 89, 94, 95, 97, 98, 168, 177 reform(s), xiii, 26, 28, 32, 50, 59, 63, 65, 67, 76, 81, 84, 92, 103, 116, 121, 122, 141, 156, 157, 163, 169, 189 regulations, xii, 23, 27, 178 regulatory agencies, 38 regulatory review, xii, 17, 18, 22, 30 Rehnquist, William, 7, 166, 172 relevance, 61 reliability, 175 relief, 79, 101 religion, 61, 94, 127, 169, 204, 206 religiosity, 61 rendition, 12 reporters, 108, 120 Republican Party, v, xiii, 61, 63, 69, 73, 79, 84, 144, 192 reputation, 12, 63, 84, 109 requirement(s), 20, 22, 29, 126 resistance, 19, 141 resolution, 78 resources, 7, 22, 36, 60, 64, 66, 98, 135, 143, 155, 159, 174 response, vii, xiv, 7, 29, 54, 64, 84, 105, 110, 111, 114, 116, 133, 134, 136, 138, 140, 142, 144, 147, 153, 154, 156, 159, 161, 175 responsiveness, 22 restrictions, 5, 12, 13, 19, 53, 80, 151 restructuring, 137, 142, 145, 160 retail, 108 retirement, 167, 176 rhetoric, xiii, 40, 75, 76, 87, 88, 89, 95, 96, 97, 101, 107, 113, 154, 184, 194, 201, 204 Rice, Condoleezza, 10, 138, 146 Rice, Secretary of State Condoleezza, 10, 138, 146

218

Index

rights, xii, xv, 13, 50, 53, 136, 167, 169, 188, 190 risk(s), 28, 29, 43, 106, 109, 114, 124, 135, 137, 144, 147, 177, 188 Roberts, John, xv, 165, 176, 178 Roman Catholics, 77 Roosevelt, Franklin Delano, viii, 37, 53, 74, 123, 138, 168, 171, 204 root(s), 33, 39, 40, 49, 51, 95, 110 Rossiter, Clinton, 34, 43, 44 Rove, Karl, 61, 62, 80, 85, 119 rule of law, 42, 116 rules, 9, 38 Russia, 49, 50, 113, 116 Rwanda, 189 Ryn, Claes, 42

S safe haven(s), 91, 161 safety, 27, 64 SARS, 147 Saudi Arabia, 136, 189 scholarship, xi, xv, 41, 42, 44, 57, 154 school, 24, 60, 64, 65, 74, 90, 95, 124, 169, 174, 178, 183, 184, 186, 187, 188 science, 58 scope, 8, 9, 20, 21, 43, 70, 97 Secret Service, 32 Secretary of Defense, xii, 143, 155, 157, 161, 164 Secretary of Homeland Security, 133, 143 Secretary of the Treasury, 44 security, 4, 7, 51, 65, 111, 133, 134, 135, 137, 138, 139, 141, 142, 143, 144, 145, 146, 147, 148, 149, 161, 205 self-confidence, 101, 102, 105, 106, 108, 109 self-promotion, 106 Senate, xiv, 7, 11, 31, 32, 35, 36, 63, 73, 77, 78, 79, 81, 82, 84, 92, 94, 99, 108, 109, 126, 139, 142, 149, 156, 157, 158, 166, 169, 173, 174, 176, 177, 180, 189, 194 September 11, 3, 5, 7, 12, 14, 18, 19, 21, 27, 29, 78, 80, 83, 92, 123, 126, 138, 149, 153, 154, 157, 183, 187 services, 27, 77, 90, 91, 94, 121, 201 Sierra Club, 62 signing statements, xii, 17, 18, 20, 21, 22, 30, 31, 38, 41, 45 signs, 166, 167 Skowronek, Stephen, xiii, 30, 44, 57, 60, 66, 71, 72 small business(es), 74, 186 social conservatives, 25, 59, 167, 173 social movements, 19 social programs, 74, 78

Social Security, xiii, 62, 67, 84 social services, 62, 76, 90, 94, 124 society, 34, 62, 92, 127, 188 solution, 88, 141, 146, 174 Sotomayor, Sonia, 181 South Africa, 189, 194 South Dakota, 79 sovereignty, 148 Soviet Union, 75, 136 Spain, 116 speculation, 166 speech, 38, 58, 62, 90, 91, 92, 94, 96, 97, 104, 118, 119, 122, 128, 174, 187 spending, 29, 44, 50, 63, 64, 65, 75, 76, 81, 94, 124, 178 Spitzer, Robert J., v, 33, 44, 45, 46 Spring, 31, 72 St. Petersburg, 67, 116 staff members, 136 staffing, 4, 6, 123, 146 stakeholders, 3, 4, 146 State of the Union address, 89, 91, 93, 95, 98, 115, 116 state(s), xv, 4, 7, 8, 13, 19, 20, 22, 35, 37, 40, 41, 42, 62, 65, 74, 76, 77, 79, 80, 81, 82, 83, 84, 85, 92, 95, 107, 112, 126, 134, 138, 140, 141, 147, 155, 167, 169, 174, 179, 184, 186, 187, 190, 192, 199 statutes, 5, 19, 23, 178 statutory authority, 144, 197 statutory provisions, 22 steroids, 33, 42 stigma, 189 stimulus, 108, 169 stress, 21, 42, 89, 93 stretching, 11 strictures, 38 structural changes, 24 structural reforms, 140 structure, 20, 33, 133, 134, 135, 137, 138, 142, 144, 145, 146, 147, 149, 153 sub-Saharan Africa, 189 Sun, 192 Supplemental Nutrition Assistance Program (SNAP), 124 Supreme Court, vi, xi, xii, xv, 9, 13, 18, 20, 27, 29, 31, 35, 37, 39, 46, 69, 76, 82, 155, 165, 166, 167, 168, 169, 170, 171, 172, 174, 175, 176, 177, 178, 179, 180, 181, 206 Supreme Court nominee, 166, 177 surveillance, vii, 25, 38, 49, 51 survival, 102, 137 suspense, 76 Sweden, 203

219

Index symbolism, 88, 96 symmetry, 112 sympathy, 54 synthesis, 44 Syria, 50, 109, 113, 114

T tactics, 17, 22, 23, 28, 38, 89, 114, 166 Taft IV, William, 3, 9, 10 takeover, 137 Taliban, 153, 188, 193 Tanzania, 189, 194 target, 113, 158 Task Force, 32, 150 tax cut(s), vii, xiii, 62, 63, 80, 83, 116, 169 taxes, 60, 62, 78 taxpayers, 91, 124 teacher(s), xv, 65, 183, 184, 187, 189, 198, 199 teams, 24 techniques, 6, 9, 10, 11, 12, 22, 32, 81 technology, 81, 107 telephone, 201 television ads, 80 temperament, 128, 178, 187 tenants, 113, 114, 115 tension(s), 65, 145, 154 tenure, 64, 140, 167, 172, 173, 175, 187, 188 territorial, 107 territory, 28, 111, 137, 148 terrorism, 14, 20, 30, 49, 80, 83, 85, 93, 107, 110, 111, 115, 134, 135, 136, 137, 138, 140, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 155, 157, 162, 163, 188 terrorist attack(s), 5, 19, 62, 69, 78, 110, 119, 128, 133, 134, 136, 137, 138, 143, 145, 148, 149, 153, 155, 157, 187, 198 terrorist groups, 7 terrorists, vii, xii, 27, 105, 107, 109, 140, 143, 151, 158, 159, 188 Thach, Charles, 39 The Federalist Papers, 44, 45 Thomas, Clarence, 155, 169, 175 thoughts, 54, 127 threats, 7, 28, 36, 41, 110, 112, 113, 134, 135, 136, 137, 139, 141, 144, 145, 146, 147, 148, 156, 180 time warp, 45 Title I, 143 tornadoes, 147 torture, 6, 9, 12, 22, 38, 42, 51, 104 tracks, 169 trade, 24, 161 training, 40, 161, 184

trajectory, 187 transcripts, 117, 166 transformation(s), xiv, 83, 101, 114, 115, 147 transition period, 25, 108 transparency, 19 transportation, 64 treaties, 5, 9, 35, 38 treatment, 21, 90, 92, 95, 97, 115, 124, 154, 174, 179, 189 trial, 35 Trinidad, 116 Trinidad and Tobago, 116 Troubled Asset Relief Program (TARP), 64, 66 Truman, President Harry S., 157 trustworthiness, 178 Turkey, 116 turnout, 80, 83

U U.S. history, xi, 136 U.S. policy, 21 uncertain outcomes, 180 unilateral, v, xii, xv, 17, 28, 33, 98, 104, 204 unilateralism, 18, 20, 29, 114 unions, 25, 65, 74, 185 unitary executive, v, 5, 7, 8, 17, 18, 20, 21, 23, 30, 33, 34, 37, 38, 41, 44, 45, 46 unitary executive theory, 20, 21, 34, 37, 41 United Airlines, 155 United Kingdom, 116, 117 United Nations, 112, 136, 158, 161, 188, 189, 193 United States (USA), xiii, xiv, xv, 7, 12, 13, 14, 18, 19, 27, 29, 30, 31, 35, 39, 45, 50, 102, 103, 104, 105, 107, 110, 111, 112, 113, 114, 116, 118, 122, 123, 124, 134, 136, 138, 139, 143, 145, 147, 148, 149, 157, 162, 163, 164, 178, 180, 183, 186, 187, 191, 199, 200, 201, 203, 205 universities, 178, 191 USA PATRIOT Act, 136

V vacancies, 165, 168, 175, 176 variables, 146, 148 variations, 137 veto, 18, 23, 31, 35, 36, 87, 95, 112 veto power, 95, 112 Vice President, xi, xii, 5, 8, 10, 13, 19, 27, 32, 45, 49, 50, 51, 74, 75, 77, 81, 104, 108, 121, 141, 143, 146, 157, 159 victims, 157

220

Index

Vietnam, 5, 14, 19, 80, 81, 140, 155, 156 Viking, 117 vision, 28, 29, 33, 37, 58, 64, 88, 91, 103, 116, 120, 162, 172, 178 vote, xi, 74, 77, 81, 82, 83, 121, 125, 166, 167, 169, 171, 173, 174, 177, 180 voters, xiii, 61, 74, 75, 76, 77, 79, 81, 82, 83, 84, 185 voting, xiii, 81, 168, 175, 185 voting record, 168 Voting Rights Act, 74 vulnerability, 143, 148

W war, xiii, xiv, 5, 7, 11, 13, 17, 18, 19, 21, 22, 27, 29, 32, 41, 42, 44, 49, 62, 78, 79, 80, 81, 83, 84, 93, 104, 105, 106, 107, 109, 128, 142, 148, 153, 154, 158, 159, 160, 161, 177, 180, 188, 190, 198 War Crimes Act, 6 War Crimes Act of 1996, 6 war hero, 80 War on Terror, 5, 30, 85, 112, 117, 128, 146, 153, 162 Warren, Earl, 170 Washington, 18, 24, 26, 29, 30, 31, 32, 36, 44, 45, 46, 47, 71, 76, 78, 83, 85, 86, 90, 98, 99, 100, 108, 115, 116, 117, 118, 141, 146, 147, 149, 150, 151, 155, 158, 159, 161, 162, 164, 178, 181, 183, 187, 188, 192, 193, 201, 203, 205, 206 Washington, George, 44, 178 Washington, Martha, 193 water, 51, 198 watershed, 169 weakness, 19, 36, 156, 157 wealth, 64 weapons, 104, 110, 111, 117, 136, 147 weapons of mass destruction, 110, 147 web, 80 welfare, 63, 67, 74, 76, 92, 197 welfare reform, 67, 92 welfare state, 63 West Texas, 60, 183 West Wing, 139, 142, 187

whales, 27 White House, vi, viii, xi, xii, xiv, xv, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 17, 22, 23, 24, 25, 27, 29, 30, 31, 32, 49, 50, 51, 52, 53, 58, 61, 62, 77, 79, 82, 90, 91, 94, 99, 100, 108, 115, 116, 117, 119, 120, 121, 123, 124, 125, 126, 127, 133, 134, 135, 136, 137, 138, 139, 140, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 153, 156, 157, 160, 161, 162, 164, 167, 174, 176, 177, 183, 184, 186, 187, 188, 189, 190, 191, 192, 193, 194, 197, 201, 203, 205, 206 wholesale, 41, 138 wife, 183, 184, 185, 190, 191, 192, 194 Will, George, 42, 46 Wills, Garry, 34, 44 Wilson, Woodrow, 35, 44 wiretaps, 22 withdrawal, 11, 12, 177 WMD, 105, 136 workers, xiv, 17, 25, 65, 74, 156, 166, 184, 186, 189 working class, 77 workplace, 25, 27 World Bank, 125 world order, 110 World Trade Center, 7, 21, 78, 106, 136 World War I, xii, 74, 75, 134 worldview, 101, 102, 104, 113 worldwide, 110, 114, 183, 188 worry, 52, 108, 158

Y Yale University, 30, 32, 44, 46, 85, 98, 117 Yeltsin, Boris, 136 Yemen, 109 Yoo, John, 6, 7, 10, 14, 42 young people, 124

Z Zambia, 183, 188, 190, 194