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How Do You Say "Souter" In Spanish? "Gonzales." Straight Talk On Judicial Nominees
A Questionable Kind Of Conservatism: How Do You Say "Souter" In Spanish? "Gonzales."
By George F. Will
July 24, 2003
This is the summer of conservatives' discontent. Conservatism has been disoriented by events in the past several weeks. Cumulatively, foreign and domestic developments constitute an identity crisis of conservatism, which is being recast -- and perhaps rendered incoherent.
George W. Bush may be the most conservative person to serve as president since Calvin Coolidge. Yet his presidency is coinciding with, and is in some instances initiating or ratifying, developments disconcerting to four factions within conservatism.
The faction that focuses on foreign policy has four core principles: Preserve U.S. sovereignty and freedom of action by marginalizing the United Nations. Reserve military interventions for reasons of U.S. national security, not altruism. Avoid peacekeeping operations that compromise the military's war-fighting proficiencies. Beware of the political hubris inherent in the intensely unconservative project of "nation-building."
Today a conservative administration is close to asserting that whatever the facts turn out to be regarding Iraqi weapons of mass destruction, the enforcement of U.N. resolutions was a sufficient reason for war. If so, war was waged to strengthen the United Nations as author and enforcer of international norms of behavior. The administration also intimates that ending a tyranny was a sufficient justification for war. Foreign policy conservatism has become colored by triumphalism and crusading zeal. That may be one reason why consideration is being given to a quite optional intervention -- regime change, actually -- in Liberia.
The conservative faction that focuses on low taxes as the key to economic dynamism and individual opportunity has had two good years. But this faction must be unsettled by signs that the president's refusal to veto last year's abominable farm bill (in fact, he has vetoed nothing) was not an aberration. The tax cutting seems unrelated to any thoughtful notion of what the government should and should not do.
Howard Dean, who will say anything while pandering to his party's activists, says the Bush administration aims to "dismantle" Medicare. Actually, the administration is eager to approve the largest expansion of the welfare state since the Great Society 40 years ago.
A prescription drug entitlement is not inherently unconservative, unless the welfare state itself is -- and it isn't. If the pharmacological revolution that has occurred since Medicare was enacted in 1965 had occurred by then, some such entitlement would have been included. But the administration probably will approve an entitlement of unknowable cost ($400 billion over 10 years is today's guess, which is probably low), without reform of Medicare.
The conservative faction that focuses on constitutionalism and democratic due process winced when the president seemed to approve of Justice Sandra Day O'Connor's opinion affirming the constitutionality of racial preferences for diversity in higher education -- and perhaps in many other spheres of life. The concept of group rights -- of government complicity in allocating wealth and opportunity on the basis of skin pigmentation -- now has a conservative president's imprimatur.
Finally, this summer the faction called "social conservatives" has been essentially read out of America's political conversation. Their agenda has been stigmatized as morally wrong and constitutionally dubious by the Supreme Court, seven of whose nine members are Republican appointees. Justice Anthony Kennedy -- like O'Connor a Reagan appointee -- wrote the opinion striking down a Texas law criminalizing consensual adult homosexual acts. Kennedy asserted, in effect, that laws intended to strengthen a majority's moral principles -- laws of a sort America has never been without -- are constitutionally suspect.
The president is rightly reluctant to endorse a constitutional amendment defining marriage as a heterosexual institution: Constitutionalizing social policy is generally unwise. But the administration's principal objective may be to avoid fights about cultural questions. Two weeks ago the administration reaffirmed the irrational and unfair implementation standards of the Title IX ban on sex discrimination in college athletics. Those standards are now immortal, having received a conservative administration's approval.
What blow will befall conservatives next? Watch the Supreme Court, the composition of which matters more than does the composition of Congress.
Justice David Souter, nominated by the first President Bush, quickly became a reliable member of the Supreme Court's liberal bloc. Alberto Gonzales, the White House counsel who came with this President Bush from Texas, may be chosen to fill the next court vacancy. The likelihood of a vacancy during this presidency has given rise to a grim joke among conservatives:
How do you say "Souter" in Spanish? "Gonzales."
Straight Talk On Judicial Nominees
September 10, 2003
When Miguel Estrada withdrew his nomination for a federal judgeship last week, his backers blamed anti-Hispanic bias. Republicans are regularly tossing around such charges over judicial nomination setbacks, calling them anti-Hispanic, anti-Catholic, anti-woman. But these battles have been over ideology, and the scope of the Senate's questioning of nominees. The name-calling is puerile and divisive. The administration and its supporters should argue for their nominees on the merits.
The House majority leader, Tom DeLay, called the effort to defeat Mr. Estrada a "political hate crime." Yet some of the stiffest opposition to Mr. Estrada, who was nominated to the United States Court of Appeals for the District of Columbia Circuit, came from Hispanic leaders, including the Congressional Hispanic Caucus. And while many Democratic senators opposed Mr. Estrada, they have voted to confirm 12 of President Bush's other Hispanic judicial nominees.
The Republicans' record is worse. In the Clinton era, they denied confirmation votes to six Hispanic judicial nominees, and delayed others for years. Jorge Rangel, who went 15 months without a hearing on his federal appeals court nomination, wrote to Senate Democrats last week to ask where Republican senators' "cry for diversity on the bench" was when he was forced to withdraw in 1998.
Hispanic leaders did not oppose Mr. Estrada because he is Hispanic. Catholic senators like Richard Durbin and Patrick Leahy do not oppose William Pryor, a nominee to the United States Court of Appeals for the 11th Circuit, because he is Catholic. Senators Dianne Feinstein and Barbara Boxer do not oppose Priscilla Owen, a nominee to the United States Court of Appeals for the 5th Circuit, because she is a woman. Mr. Estrada would not answer senators' questions. Mr. Pryor and Ms. Owens have met resistance for their archconservative views.
Diversity is not the only issue on which Republicans are not talking straight. During the Clinton administration, prominent Republicans argued that there were too many judges on the District of Columbia Circuit, and opposed Clinton nominees on the grounds that confirming them would be a waste of tax dollars. But now that a Republican president is nominating people like Mr. Estrada to the court, these objections to its size have withered.
Charging discrimination may score political points, but the confirmation of federal judges is too important to be treated so cynically. Republican and Democratic senators know what they are fighting over: legitimate disagreements over how to interpret the Constitution and define the role of a federal judge. They owe it to the American people to be honest about their differences.