The Washington Times
Historians will mark the administration of George W. Bush as the point at which the so-called social issues, long a galvanizing feature of American partisan politics, finally lost their sting. The Supreme Court’s rulings upholding diversity as a compelling government interest and striking down the remaining state anti-sodomy laws join the early Bush administration decision allowing stem-cell research to go forward. The trinity [as it were] of decisions leave those whose top priority has been the preservation of a certain traditional public morality now essentially voiceless in electoral politics. The Republican Party has moved on.
Just to review the importance of the now barely remembered stem cell decision: The real political question here was whether the Bush administration would continue to accommodate the wishes of the pro-life movement within the GOP. Politically, it would have been both simple and expedient for a Republican administration to turn down stem-cell research altogether. The link between the research and its precondition, namely aborted fetuses from which stem cell lines can be cultivated, is obvious.
The administration was cleverer than that. I don’t know if it was Mr. Bush’s intention from the outset to break the back of the pro-life lobby in the GOP, but that was the effect of his decision to allow research on currently existing cell lines but not on new lines cultivated from additional fetuses. Although the Catholic Church remained opposed, Mr. Bush won support for his decision from a number of evangelical Protestants who had for years been prominent in absolute opposition to abortion. He split the pro-life community, in effect ending its veto on party positions related to abortion. A pro-choice GOP vice presidential candidate is now conceivable, for example, something that has not been true for a generation.
I think the two Supreme Court decisions will be similar in effect. They are not, to be sure, administration decisions. But that is not the point. The real question is whether the Bush administration and the Republican Party more broadly will continue to contest these issues or simply let them go.
We should start with the composition of the Supreme Court itself. Seven of its nine members were appointed by Republican presidents. Three of those, of course Chief Justice Rehnquist and Justices Scalia and Thomas are consistently “conservative,” whether one takes that term in the popular sense of right-leaning or more properly in the sense of embracing a constitutionally circumscribed view of what the Supreme Court should be deciding. But why aren’t there seven conservatives on the court? The answer is that even staunchly conservative presidents have a very difficult time figuring out what their appointees will do once they get life tenure on the bench and final say on important matters of law and policy.
Far be it from me to suggest that partisan politics has an effect on Supreme Court decisions. Nevertheless, it’s a Republican Supreme Court. The divisions among its GOP appointees actually reflect what is for many conservatives the uncomfortable fact that, while their positions command majority support within the GOP, it’s not unanimous.
Second, the coalition politics within the GOP will shift as a result of the two decisions. In the case of gay rights, social conservatives long ago found it prudent to give up the public rhetoric of moral opposition to homosexuality. You can tell how true that is from the acute embarrassment felt within the party whenever one of its members breaches this understanding, as Sen. Rick Santorum did earlier this year. The only question fit for public debate, even in the eyes of those opposed to gay rights, was whether the Supreme Court as opposed to elected officials should be deciding on whether you can ban sodomy.
Well, the court decided that it would decide. And that’s that. It seems inconceivable that a future Supreme Court will reverse itself, and anyone urging such a course would thereby marginalize himself. Before the issue is settled, such positions may entail a measure of coalition support. Afterward, no.
The same is likely true of “diversity.” Diversity has actually been a settled issue in corporate America and the private sector more broadly for years: It doesn’t really have any public detractors. Accordingly, again, conservatives narrowed the focus of their argument to the question of whether the government [and only government, the private sector being on principle free to make up its own mind] should embrace diversity at the expense of its traditional focus on the rights of individuals. Opponents pointed to the supposed social costs of doing so, and they drew some principled support. But that was then: Who now will stand up to propose that a future Supreme Court reverse itself and declare that diversity is not a compelling interest of government? No one with serious political ambitions within the GOP.
Democrats will continue to run against Republicans as if the latter were still contesting social issues. But increasingly, Republicans will find it convenient to repair to a “principle” of pragmatism: These issues have been decided.