With the resignation of Justice Sandra Day O’Connor, it appears that the “mother of all judicial confirmation battles” has begun, and I say bring it on. To those who suggest that President Bush should pick another day to have this fight or should seek to promote comity by appointing someone who shares O’Connor’s inclination for nuance and is less likely to tilt the Court, I respond as follows: To the first objection, I submit that this is currently the most important domestic fight to have and, if not now, when should we have it?; to the second objection I counter that O’Connor, for all of her professionalism and class, has been a major part of the Court’s problem for the past twenty years—in case after case involving the critical issues of our time, she has been the swing vote for ambiguity. What is needed now more than ever from our highest court is clarity and consistency of the application of principles based on a return to strict construction of the American constitutional rule of law. If this is considered “outside the mainstream” or an “extraordinary circumstance” that justifies a filibuster by the left of the confirmation of her replacement, Senate Majority Leader Frist should tell them to bring a cot and enough groceries for a long engagement. 

An editorial lead in the current issue of Chief Executive Magazine caught my attention. It essentially suggested that CEOs of the major companies are finally waking up to the realization that a renewed and primary emphasis on competitiveness is the key to the restoration of business credibility on a range of issues, including the multiple threats of globalization, and that a sense of urgency on this renewal will help to repair the damage that has been done to their image and standing in the body politic. It struck me that, aside from the fact that this is almost self-evident, this theme is common to many of our other beleaguered institutions, and that business opinion leadership is critical to the restoration of these as well.

For example, I speak quite often on issues related to public education reform, and I am often questioned and, in fact, sometimes chastised on my frequent use of the word “competition” to describe a solution to many of the perverse incentives that plague the delivery of education. And this critique comes not only from members of the education establishment, among whom the word itself is anathema, but often from business owners and CEOs, the constituency that should understand the concept better than most. As so well explained by Caroline Hoxby of the Hoover Institution’s Koret Task Force on K-12 Education, there is an obvious thirty-year old productivity crisis in public education, and a major key to a turnaround in student achievement is competition among education delivery systems. Why this age-old concept is lost on the many business leaders who want to continue to pour more money into an underperforming monopoly is a mystery to me.

Other examples are health care and retirement benefits programs. Business leaders who truly respect and want to defend the power of the dynamics of competition and free markets to enhance productivity, expand availability, and lower costs should be at the forefront of leadership in demanding the deregulation of medical insurance finance through such innovations as Health Savings Accounts and the conversion of Social Security to defined contribution plans, but often seem to fear the invocation of the “c” word in addressing them. Again, it remains a mystery that business opinion leadership on these initiatives, particularly among large corporate CEOs, has been tepid at best and completely missing at worst.

It is well accepted that business leaders have responsibilities that transcend the purely parochial interests of maximizing the profitability of their economic units, but even if this is their only concern, it is long past time for them to “wake up and smell the coffee”, for many of these public policy problems have a direct impact on their economic viability, their leadership is absolutely critical, and the solution to them in many cases can be found in the same place—enhanced competitiveness.

From the Institute for American Values comes word that its leadership is considering a major conference on the crisis of parenthood and related issues. It couldn’t come too soon or at a more critical juncture. The Institute also reports that Canada is seeking to erase the term “natural parent” from federal law, replacing it with the term “legal parent”, and in New Zealand an influential commission recommended that children conceived by donors should in some cases have three legal parents. And just recently, Spain has legalized same sex marriage. The encroachment from this insidious worldwide movement to undermine the basic family unit is palpable. In the U. S., this movement is manifest in the trends in family law. For example, the American Law Institute, an association of America’s elite legal scholars, judges, and lawyers, published a report proposing to sideline what it calls “traditional marriage”, re-situating marriage as merely one of many possible and equally valid family forms. In addition, it seeks to break the ties between biological and functional parenthood and recommends full legal marriage rights for same sex couples. In the courts, a recent pronouncement by a California superior court judge struck down the state’s traditional marriage laws which had been reaffirmed in a referendum in 2000, and there is no indication that the political leadership there will attempt to overturn the decision with a constitutional amendment.

In an October 2004 essay, Mary Ann Glendon makes an important point about where the recent history of all this has led: “With widespread acceptance of the notion that behavior in the highly personal areas of sex and marriage is of no concern to anyone other than the ‘consenting adults’ involved, it has been easy to overlook what should have been obvious from the beginning—individual actions in the aggregate exert a profound influence on what kind of society we are bringing into being………affluent Western nations have been engaged in a massive social experiment, an experiment that brought new liberties and opportunities to adults but has put children and other dependents at considerable risk.”

There are those, like David Blankenhorn of the Institute for American Values, who would like to eliminate the issues of social justice and “rights” from this debate and focus on the purposes of the institution of marriage and the reasons human beings founded it in the first place. But given the current environment, it seems pretty foolish to assume that the proponents of transforming the institution of marriage have any interest in such a dialogue, nor in any compromise resolution of this enormously important issue through the give and take of democratic politics. It has become increasingly clear that the only viable option is a federal constitutional amendment.

The transformation of the Middle East plods on, no thanks to the irresponsible opposition in this country, the leading political party of which calibrates its every move based on its anticipated damage to the credibility of the Commander in Chief. In fairness, President Bush hasn’t helped himself much lately, having been remiss in his communications efforts to counteract this drumbeat over the past several months. Recently, however, there have been at least two major and successful attempts to rectify this omission. One was Secretary of State Condoleezza Rice’s trip to Egypt and Saudi Arabia, where she laid the Bush Doctrine on the line about as well as has been done and reminded their rulers that the administration is dead serious about democratization of the region—all of it, including those regimes ruled by long-standing autocrats some consider exempt from such pressures. With phrases like “America will no longer pursue stability at the expense of democracy” and “it is time to abandon the excuses that are made to avoid the hard work of democracy”, and with meetings with the political opposition in Egypt, she plowed ground that no American Secretary of State in memory has trod (and probably gave apoplexy to many of the career bureaucrats in Foggy Bottom!). This is important dialogue, vital in keeping the pressure on these regimes, not lost on those in Syria and Iran who might otherwise have reason to doubt our sincerity, and as big a part of the war on Islamofascism as the military campaign in Iraq.

As for the President on the home front, at Fort Bragg he delivered one of his best speeches since the beginning of the conflict in Iraq, probably long overdue, not flashy as usual, but one that should have restored confidence in the troops as well as the fickle body politic in his unwavering commitment to finish the job and the necessity of doing so. As usual, the “disloyal opposition” made every attempt to discredit its effectiveness, with snide comments about his linkage of 9-11 with the war in Iraq, but this worn out sniping has lost resonance with all but the loony left and Howard Dean, and I believe that, public opinion polls notwithstanding, reasonable people are becoming even more convinced that, despite the absence of WMD to date and a number of tactical mistakes in execution, Iraq was and is one necessary front among many in this war. No victory, no peace.