Although the Virginia political scandals are such a fast-moving, and changing, train, it’s still possible to think about conclusions that validly can be drawn. It’s also necessary, since in this age of the internet and social media, along with a non-stop news cycle, evidence of past misdeeds and misstatements by public figures inevitably will keep surfacing.
For now, of course, the spotlight is on Virginia Governor Ralph Northam, the state’s Lieutenant Governor Justin Fairfax, and its Attorney General Mark Herring. But it’s clear that it shouldn’t shine equally on each one, and that the responses most consistent with democracy and the rule of law shouldn’t be uniform, either.
The main reason: As repugnant as their adventures in blackface were, neither Northam nor Herring has committed a crime. Consequently, despite the many calls for their resignations by Virginians and non-Virginians alike, I don’t believe they should accede – unless they genuinely conclude their consciences or the public good demand it. This is especially true for Northam, who to date clearly wants to keep his job.
Both his fate and that of Herring should be up in the air – that’s sure. But the decision to keep them in office ultimately should be made by Virginia voters through one of two established procedures. Either they can act on their own, and start gathering the signatures needed to make possible a court-approved recall, or they can urge their elected representatives in the state’s House of Delegates or Senate to approve impeachment and removal.
It’s entirely understandable for Virginians to fear that their state’s government will grind to a standstill as long as Northam remains in the governor’s mansion in particular. (This problem of course exists separately from the complications that would arise from his replacement by the legally troubled Fairfax, or by Herring – though they are major complications indeed.) But if the state’s residents are sufficiently worried about this prospect, they can make their concerns clear and move to assuage them in lawful manners.
None of this argument is intended to belittle other, more ethically, grounded points made to support Northam’s resignation. It indeed is reasonable to contend that he has lost the moral authority Virginians (and other voters) are entitled to expect from their elected leaders. It’s also reasonable to insist that Northam was elected fraudulently – since he never owned up to the blackface incident during the gubernatorial campaign. (And incidentally, I personally find much more troubling the presence of a Ku Kux Klan-hooded figure in the photo in question. For this group is nothing less than a violent domestic terrorist organization with a long record of racist and other bigoted violence.) Ditto for the position that Northam’s apology has turned out to be clumsy at best – and raised new questions about his racial attitudes and sincerity.
From the opposite perspective, I find some merit in the view that Northam’s record in public life on race has been admirable, and that either for that reason, or out of a broader general principle, or some combination of the two, neither he nor his career should be defined solely by a single, non-criminal episode, however odious.
But when a democracy confronts issues like this, neither my individual, nor yours (unless you live in Virginia), is especially important. What needs to count first and foremost are the collective reactions of Northam’s constituents in the state, who entrusted him with specific, major responsibilities, and who first and foremost will be impacted by the various outcomes. Denying a Virginia majority the ultimate say would in effect allot this decision to the loudest (not most numerous) voices in the state – and the nation. And therefore, it would represent a triumph not only of many with no real skin in this game, but of mob rule (albeit a non-violent form).
By contrast, Fairfax has been accused (so far) of two major crimes. Initially, let’s leave aside the comparisons naturally drawn between these sexual assault charges and those leveled at new Supreme Court Justice Brett Kavanaugh during his confirmation hearings. Like Northam, Fairfax is an elected official. Unlike them, however, his alleged offenses could be criminal – which means they raise sets of questions both that are similar to those surrounding Northam (and Herring) and that are different.
The similar questions entail who should determine Fairfax’s political fate. And the answers resemble those for Northam and Herring: Virginia voters, acting on their own, or through their elected representatives. It’s true that major political and policy problems in the state could result from Northam’s replacement as governor by a second-in-line official whose tenure could be among the briefest on record. But Virginians should have the right to wrestle with these matters and figure out the pros and cons of all the likely scenarios themselves.
Fairfax’ status as an elected official also distinguishes him in an important respect from Kavanaugh – who held a judgeship during his Supreme Court nomination hearings, but was seeking a higher post. What Virginians must decide is whether he should continue in his current office, not whether he deserves a new one. (Interestingly, despite some talk of removing Kavanaugh from the federal bench because of his own sexual assault problems, and even other issues such as character flaws allegedly revealed because he supposedly lied about his experiences with alcohol, no removal procedures were ever initiated. Nor has anything yet come from efforts to impeach and remove Kavanaugh from the Supreme Court.)
The more interesting Fairfax questions are those concerning his own exposure to criminal prosecution. Reportedly, his first accuser, Vanessa Tyson, has decided not to press charges. His second accuser, Meredith Watson, seems to have chosen a similar course of action.
But Fairfax is hardly out of the legal woods, because the statute of limitations for such crimes in neither of the states in which they allegedly occurred (Massachusetts for Tyson, North Carolina for Watson) has yet run out. And state officials can decide to move ahead on either case themselves. Conviction would definitely warrant impeachment and removal. Moreover, such steps could be defensible even if Fairfax was acquitted – but only if Virginians decided they were repelled enough by information that came out in court, of if they decided that the verdict was unjust.
Similarly, during such a Fairfax trial, I know that if I lived in Virginia, I wouldn’t want my state government (if Fairfax succeeded Northam), or my lieutenant governor to face the possibility of defending himself against criminal charges – surely a full-time job in and of itself. And as with the Northam and Herring messes, all non-Virginians should feel perfectly free to voice their opinions – and even urge resignations (or hanging on). In fact, as with all free-wheeling debate, non-Virginians may well come up with some insights and ideas that haven’t occurred to Virginians. But I don’t live in Virginia, and for all of us out-of-staters, our personal stakes in the course of this drama are nil.
One contingency that might change all of these calculations, especially for Virginians: If non-Virginians become so outraged by the prospect of some combination of Northam, Fairfax, or Herring staying in office that they try to organize tourism and other boycotts of the state. I’m generally against such campaigns, although there do seem to be reasons to believe that they’re constitutionally protected when waged by individuals. But what strikes me as dispositive is that, as with the possible consequences discussed above, these are possible costs that Virginians should decided to risk.
So again, Fairfax’ future, like that of Northam and Herring should be for Virginians to decide as they see fit. If we really have faith in democracy, the rest of us will be confident they’ll make the right decision – and recognize that we have no legitimate choice but to leave it in their hands.