Conservatives Without Conscience

Because they do not want to lose the support of evangelicals, or to see them withdraw from politics as their parents or grandparents did in the 1920s, Republicans must take this agenda seriously. Reagan and Bush I gave promises but failed to fully deliver; Bush II, who became one of them, has delivered. An unspoken quid pro quo has developed for their support. Republicans appoint judges and justices whose views are compatible with Christian conservatives to do what neither Congress nor the president can accomplish: to make the agenda of Christian conservatives into the law of the land. Thus the effort that began under Reagan, and was continued by Bush I, has been most aggressively pursued by Bush II, who has undertaken a deliberate and concerted effort to pack the federal judiciary with conservative judges from top to bottom. Bush II has been more successful with lower courts than with the Supreme Court, with only two appointments, but that, too, may change soon, given the age and health of several of the justices.

Seven of the nine justices currently serving on the Supreme Court have been appointed by Republicans, but three of those seven are not nearly conservative enough to satisfy Christian conservatives. Many of them consider Justices John Paul Stevens (a Ford appointee), Anthony Kennedy (a Reagan appointee), and David Souter (a Bush I appointee) to be liberals. They are not, and, in fact, there is not a single true liberal on the high Court. Clinton appointed two moderates, Justices Ruth Ginsburg and Stephen Breyer, because he did not wish to spend his political capital with the Senate on trying to get a liberal confirmed. While today’s Supreme Court is more conservative than any since before the New Deal, lower federal courts are more conservative than they have ever been. By the end of 2005 “about 60 percent of the federal appeals courts were appointed by Republican presidents,” and of “the 13 circuit courts of appeal, 9 have majorities of judges named by Republican presidents.”[79] It is at the federal appellate court level that most law is made, and with the exceptions of the Second Circuit (Connecticut, New York, and Vermont) and the Ninth Circuit (Arizona, Alaska, California, Hawaii, Idaho, Nevada, Montana, Oregon, and Washington), the federal circuits are more conservative than the Supreme Court. The Fourth Circuit (North Carolina, South Carolina, Virginia, and West Virginia), Fifth Circuit (Mississippi, Louisiana, and Texas), and Eleventh Circuit (Alabama, Georgia, and Florida) especially have become strikingly so.

By constitutional design the federal judiciary is authoritarian, with lower court judges bound to follow higher court rulings. Thus, any five conservatives on the Supreme Court can make the law of the land, because all lower federal judges are bound by their decisions. George Bush won the support of social conservatives in 2000 and 2004 by promising he would appoint justices who thought like Justices Antonin Scalia and Clarence Thomas, the most conservative members of the Supreme Court. Bush delivered with the nominations of Chief Justice John Roberts (who replaced the conservative William Rehnquist) and Associate Justice Samuel Alito (who replaced the moderate swing vote of Sandra Day O’Connor). Theoretically, citizens should have no concern about the political affiliation of judges whom they expect to rule fairly and objectively. As a practical matter, however, ideology does make a difference. One can now predict with a fair degree of certainty the outcome of a wide variety of legal rulings based on the party affiliation of the judge, or judges, involved in the case. A partisan judiciary does not deliver justice, and conservative Republicans are again acting as authoritarians in packing the federal courts.

As the federal judiciary becomes a legal phalanx of conservative judges, and as Congress becomes increasingly conservative, it is worth pondering what would happen if a liberal or progressive president won the White House in 2008, and refused to enforce a Supreme Court ruling. Hypothetically, say the ruling required prayer in all public proceedings or the posting of the Ten Commandments in all federal buildings. Say that liberal or progressive president claimed, “I have taken an oath that is as valid as that taken by members of the Court. The Court’s ruling violates the United States Constitution. The Court has no constitutional authority to require enforcement of such a ruling; therefore, I order the Justice Department and the federal marshals not to enforce it.” Needless to say, for a president to do so would be an extreme measure. Yet this is precisely what Pat Robertson and other Christian conservatives believe a conservative president should do, and that he should act as he sees the law, not as the high Court has seen it.[80] This, of course, is the way authoritarians think.