Clinton's Case and the Case Against Clinton

Senator Clinton presented herself before a committee of her peers this morning to make her case for confirmation as Secretary of State. A mistress of the obvious, she declared herself in favor of "smart power" with no one making objections in favor of "stupid power." As reported, her opening remarks emphasized most specifically the Middle East situation. She hopes for mutual satisfaction of Israel's security interests and Palestinians' rights without acknowledging that no effective compromise can give Palestinians all the rights they claim or make Israelis feel as secure as they'd like. She claims to speak for the President-elect in deeming an Iranian nuclear weapon "unacceptable," which it is by simple virtue of the Non-Proliferation Treaty -- as are the nukes of some other countries. Expect no diplomatic revolutions from the Obama administration if Clinton is confirmed. Her promises are basically the same ones every incoming administration makes: we won't make the last one's mistakes, but we share the same goals.

The early report noted tough questioning only from Senator Lugar, who advised Clinton to have her husband stop accepting foreign donations to his famous foundation. Of course, if we accept that donations taint the recipient and invite conflicts of interests, then the damage has already been done by Bill's years of raking in the cash. Meanwhile, no one to my knowledge has yet raised the Constitutional objection that has been somehow confined to the fringes of discussion of Clinton's appointment. It's a small matter of Article 1, Section 6, which reads:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time.

The objection has been raised most forcefully by the Judicial Watch organization, and is probably dismissed by many for that reason. The organization was anti-Clinton during the 1990s, but frequently opposed Bush on issues of executive power and surveillance in this decade. The group itself points out that Presidents since Nixon (and including Bill Clinton) have gotten around the letter of the law by arranging for legislators to revoke raises. The Congress did the same thing for Clinton's benefit last month. Judicial Watch contends, however, that these reversals don't negate the fact that "emoluments" had been increased; they don't erase history. No one has felt strongly enough, or felt sure enough of their legal standing, to force the Supreme Court to rule on the question.

Many people probably consider it a petty objection, and partisanship certainly plays a role in some people's complacency, on the assumption that certain people wouldn't beef if this were John McCain nominating Senator Lieberman for the post. That's probably true, but on the other hand, some who are not objecting now would probably object in the alternate case. The main point should be that the Constitution is nothing to be shrugged at, especially by a President-elect who stressed his credentials as a constitutional scholar to contrast himself with his usurping predecessor. His choice of Clinton for the State Department, a blatant quo to replay some nebulous quid, throws into question his promises to govern according to a constrained sense of executive power. At the very least, Obama himself should be made to explain why he thinks he has not violated the Constitution by appointing Clinton. The committee currently examining her should summon him to the table as soon as possible.

Update: Crhymethinc has updated his own blog with a comment on this issue that accuses Clinton of violating her own Senatorial oath, on top of everything else. There's a lot of complacency to be overcome, however, since many people seem to accept that the "fix" erases the fact of her original vote for the raise. This is a matter for the experts to decide, but someone has to make them decide it.

Update 2: Christopher Hitchens weighs in here with a pretty decisive argument. Unfortunately, I know he'll be dismissed as a "Clinton hater" because he wrote a book against Bill way back when. Still, ask yourself the questions he asks at the start of his article and see if you can come up with different answers than his implicit ones. You don't even have to read the Constitution to figure this one out.