Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches

Our Busted Government and How to Fix It:
A Review of John Dean's Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches
By ELAINE CASSEL - FindLaw
Oct. 05, 2007

FindLaw columnist and former counsel to the president John W. Dean has written the third book in what he refers to as an "unplanned" trilogy on the Bush Administration.

In 2002, in Worse Than Watergate, Dean explored the Bush Administration's penchant for secrecy for secrecy's sake. In 2006, in Conservatives Without Conscience, he wrote about the Republican party's drift into right-wing extremism, steeped in authoritarianism.

Now, with a little more than a year left in the current Administration, Dean focuses a wide-angle lens on the state of our government, contending that President Bush and the Republican Party have mangled it to the point that it no longer serves the American people.

Dean is not without hope--he lays out a plan for how the next administration can fix the mess. However, he also ends this book with a warning: Since the Republicans have veered dangerously off-course, only the Democrats can be trusted to repair the damage done.

It's All About Process

Dean argues that the Republicans have made a wreck of all three branches of government--Congress, the Executive, and the Judiciary. His focus is not on Republican policies of the last seven years, but rather on how Republicans have neglected, or mangled beyond recognition, the lawful and legitimate processes built into our Constitution and laws.

Compromised processes, Dean argues, inexorably lead to bad policy.

Dean assails Congress for its virtual total neglect of a process that is at the heart of the doctrine of the separation of powers--oversight of the Executive branch. In addition, he faults Congress for ignoring the reports of its own General Accountability Office (GAO), condoning the White House's insistence on secrecy, and tolerating (and outright supporting, in some cases) Bush Administration policies that have given us Iraq and a host of supposed "anti-terrorism" measures that reject the basic principles not only of our Constitution, but those of international law, including the Geneva Conventions.

In addition, Dean faults the Republicans and their authoritarian tactics for seeing to it that Congress doesn't get much done. (Dean believes, however, that the atmosphere is more bipartisan since the Democrats took control of Congress in the 2006 elections.)

The Executive Branch: The Vice President and His Attorneys Hold Sway

Dean contends that the Executive Branch led by George Bush has been allowed to run amok, thanks to a complicit Congress and a Vice-President whose primary motive for taking the job, Dean suggests, was to make the Presidency as powerful, secret, and autonomous as possible. Dean's chapter on the Executive Branch focuses on Cheney as bearing primary responsibility for creating what is arguably the most secretive--and most arrogant --White House in history.

If it isn't Cheney himself pulling the strings, Dean postulates, it's the lawyers who work for Cheney, including Scooter Libby, who many think took the fall for Cheney regarding the Valerie Plame scandal. It very likely was Cheney who was at the root of the attempt to discredit Iraqi war critic Joseph Wilson by attacking his wife, Valerie Plame. David Addington, the lawyer who was at the heart of the "torture" doctrine that the Bush White House embraced, was the proponent of hundreds (to date, at least 750) of "signing statements" that President Bush has employed to try to undermine the effect of much Congressional legislation while ceremonially signing it into law.

Dean argues that it is not signing statements themselves that are the problem. Signing statements were used by many prior presidents to state, in essence, that they would not enforce a law that they believed to be unconstitutional, as is their duty under their oath of office. The problem, Dean suggests, is the particular language of Bush's signing statements, in which he claims to exercise the power of a "unitary executive" to implement the law as he deems expedient.

For instance, if Bush signs a law that mandates that a government agency take a particular action, yet accompanies that law with a signing statement containing this "unitary executive" language, he is in effect saying that he alone, as head of the Executive Branch (within which most agencies operate), will instruct the agency if, when, and how to comply with that law.

To add insult to injury, due to the high level of secrecy maintained by this Administration and the hostile position it takes with respect to Freedom of Information Act (FOIA) requests, it is nearly impossible to know in what ways, and how often, the agencies of government have outright violated the law as a result of mandates coming from the White House. Without a court order, the Bush Administration refuses to turn over records if there is any possible basis on which it can claim it is not obligated to do so.

In sum, we have a President who appears to believe that the laws he signs apply to him and the Executive Branch only if he wants them to.

The Judiciary Branch--The Most Broken Branch

It is no surprise, that Dean, himself an attorney, saves his most passionate argument for the branch of government he sees as being in the worst state--the Judiciary. While many of Bush's policy initiatives have failed, his goal to reshape the federal bench during his tenure has been, on its own terms, "successful."

Most prominently, Bush succeeded in getting two highly conservative Justices on the Supreme Court, one of them as Chief Justice. Moreover, until the Democrats took control of Congress in 2006, Bush continued the work of Nixon, Reagan and his father in packing the trial and appellate courts with judges willing to issue partisan far-right decisions, ignoring even clear, settled law.

Dean attacks the current state of the judicial confirmation process, which is highly partisan and which allows Supreme Court nominees, as well as some nominees to the federal bench, to be disingenuous about their beliefs, and fail to answer Senators' questions honestly and forthrightly. Dean traces this practice back to the Reagan years and Chief Justice Rehnquist's successful nomination. In addition, he takes us back to the Clarence Thomas hearings, and some of Thomas's implausible responses, particularly about Roe vs. Wade.

Dean also takes care to remind us, however, that dissembling during a confirmation hearing is hardly a thing of the past. Chief Justice John Roberts and Justice Samuel Alito effectively succeeded in distancing themselves from problematic past opinions, or skirting questions about those opinions, during their confirmation hearings -- then turned around and voted the way skeptical Senators had feared.

More than half of our current federal judges are Republican nominees. Though not all are tools of the extreme right, many appear to be. Moreover, if Bush has his way, he will continue to fill as many lower court vacancies as he can with judges whose opinions will turn back the clock on affirmative action, civil rights, workers' rights, abortion rights, voting rights and, more generally, the Bill of Rights, while giving greater power to big business and the President.

Dean refers to this type of partisan, hard-right judge as a "fundamentalist," one who seeks to destroy the judiciary as a third independent branch of government and transform it into an ideological arm of the Republican Party.

Fixing the Mess: Dean's Constructive Suggestions to Get Our Constitutional System Back in Working Order

Dean is not without hope: Our government can be fixed, but, at this point in time, only by a Democratic administration. He believes, as he wrote in Without Conscience, that the core of today's Republican Party is authoritarian in character, and dedicated to making big corporations richer through the creation of bigger and more government. In this sense, the Party has utterly betrayed its traditional Republican small-government ideals.

Dean is quick to point out that we don't need government reform to fix broken government; we just need to have people in power who are willing to play by the rules. Having laid out how Republicans don't "play fair" with the processes of government, using their own processes to benefit themselves and special interests, Dean argues that we must insist that government run the way it is supposed to.

Congressional representatives are supposed to act for the good of their constituents, not their parties. There are very rules for how proposed legislation is supposed to make its way through committees, and to votes. The President is the President of all the people and he (or she) is supposed to uphold the laws and Constitution, not become a potentate who rules in secret and flouts the laws with signing statements meant to make them merely optional.

Federal judges are supposed to decide constitutional issues and interpret the law. Thus, judges who march in lock-step under any ideological banner are anathema to the principle of the judiciary as a constitutionally co-equal branch of government. A judiciary captured by the Executive's party, and acting in disregard of the law, is simply a branch of the White House.

Dean states what anyone who listens to the Republican candidates' debates already knows: Every current Republican candidate (except Libertarian Ron Paul) would, if elected, continue down the path of Nixon, Reagan, Bush I, and Bush II and appoint judicial fundamentalists who will, in fact, legislate from the bench (the very sin Republicans accuse Democratic-appointed judges of committing). These jurists will shape the law to benefit special interests and diminish individual rights.

Dean argues that Congress is working better since the Democrats took control; Washington is not as partisan as it was just a year ago. Still, with 60 votes necessary to break a filibuster (Dean mentions the filibuster, but a more detailed discussion of how it has been used and abused recently would have been desirable), we are witnessing how little the Democratic Senate can accomplish if the Republicans are willing to use that tool.

If the Democrats win the White House, gain a sixty-person majority in the Senate, and pick up more House seats, we will see if Dean is correct in his argument that Democrats will reinstate the processes necessary for good governing.

In the meantime, voters ought to read Broken Government to see just how bad things are, and how far we will have to travel to return to a government of, by, and for "the People."
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Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., 2007, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004.