Talk all you want about Iraq, the Bush Doctrine, “compassionate conservatism”, or other remnants of the Bush Presidency, but its lasting legacy is likely to be the beginning of the reversal of judicial activism led by the John Roberts Supreme Court. There are significant signs in the term just ended that the fifty-year trend in looking to the Court for redress of every social grievance will soon be reversed, however incrementally and however closely divided in numerous 5-4 decisions.

And, for those of us who would have preferred bolder sweeping reversals in some of the key decisions recently rendered, there is a lot to like about this incrementalism. For example, I would have preferred a completely stricken McCain-Feingold campaign finance law, but the significant restoration of political speech in the last days of an election campaign severely guts it. Likewise, I would have preferred much more clarity in the decision involving student free speech, including Justice Thomas’s recommendation that the traditional in loco parentis legal doctrine be restored and a reversal of the Tinker decision of 1969 that started us down the path to near anarchy in many of our schools.

Of course, the decision generating the most controversy was the ruling in multiple opinions that at long last substantially ended the use of voluntary plans to create racial balance among students in public schools. Here again, we had an incrementalism that was gratifying, but not completely fulfilling, in that, contrary to Justice Kennedy’s muddled concurrence, we should have had a complete declaration that, in the true meaning of the 14th Amendment and Dr. King’s legacy, our constitution is color blind.

But I won’t let the perfect be the enemy of the very good, for the real message from this term is that Presidential elections have consequences that are truly transformational, and Bush’s appointments of Roberts and Alito may indeed begin to direct us away from much of the judicial tyranny of the past several decades and take us back to, as Roberts himself put it, “a modest approach to judging, which is good for the legal system as a whole”.

Speaking of Bush’s legacy, not to pardon Scooter Libby before he begins his prison term would leave an indelible black stain on his Presidency. He has said that he was “pretty much going to stay out of it” until the appeals have run their course and that he feels “terrible” for the Libby family. Well, that’s not good enough, Mr. President. This is almost as egregious case of prosecutorial abuse as the Duke lacrosse team “rape” case, and maybe even a bigger injustice to a loyal public servant who is essentially being imprisoned for a discrepancy of memory with a journalist by a prosecutor who failed to even get an indictment for the alleged underlying crime. 

David Brooks is one of the more talented and perceptive observers on the scene today, but I am disappointed in his analysis of the configuration of the conflict over immigration policy. His take on it in a recent essay is that the conflict begins with the explosion of higher education over the past forty years which has produced a divide between people like me, whom he defines as one of the “educated elites”, whether of liberal or conservative political persuasion, who celebrate diversity and have a cosmopolitan approach to the world, and those who tend to be more ethnocentric and favor ancient ties of community and social solidarity. In this context, he quotes sociologist Manuel Castells: “Elites are cosmopolitan, people are local”, and adds, “people with university values favor intermingling; people with neighborhood values favor assimilation”.

Well, guess what? These worldviews are not necessarily mutually exclusive. For I am also a traditionalist who shares the fear that “diversity” in the form of the multiculturalism it often becomes is a severe threat to ties of community and solidarity and the American idea, and that greatly increased immigration without strictly controlled entry and careful attention to assimilation is detrimental to the future of our country. Does this make me the anti-immigrant, “rooted nationalist”, “nativist”, retrograde neighborhood values provincial he seems to think? I don’t think so, nor do I believe that these characterizations fit the vast majority of the people who demanded of their elected representatives that they reject the “comprehensive” immigration reform bill.

Peggy Noonan has captured this sentiment very well. In discussing her grandfather’s feelings about America when he arrived from Ireland, she says he made the decision to “cast his lot” here, and that’s an important point. It means you let go of the old country and you hold onto the new country, which in succeeding generations becomes a habit that produces meaning, history, and tradition, and that sustains loyalty. And she adds that the problem with much of immigration today is that for too many it’s no longer necessary to “cast their lot” because there are too many ways not to “let go” of the old and “take hold” of the new.

There are much more important issues at stake in this heated debate than new workers and new voters. Immigration policy should be first and always about citizenship and, as Theodore Roosevelt wisely said, we have no room for “hyphenated Americans” or dual citizenship; there is only room for those who want to be completely Americans.

Get ready for the next major battle, and it will be at least as potentially divisive for the Republicans as the immigration divide. The issue is universal health care, and the forces of this “one size fits all” system are in full stealth mode, with the lead element being the massive expansion (to $75 billion over five years) of the State Children’s Health Insurance Program (SCHIP). What makes this vehicle so insidious is that it emphasizes children’s health and the underinsured condition of so many of them, while infiltrating families, including coverage of large numbers of adults, whose annual income is as high as over $80,000. It goes without saying that once a program this broad takes hold, it will be virtually impossible to reverse such a middle class benefit, and from there it will be only a small step to universal “cradle to grave” coverage and a complete socialization of the nation’s health care system, Hillary Clinton’s dream. Some observers feel that the Democrats may overplay their hand with the very expensive SCHIP expansion and be forced to significantly cut other popular programs to pay for it, such as the subsidy for Medicare Advantage, the private Medicare program. But don’t bet on it. More likely, it’s time to get talk radio geared up again and for President Bush to dust off the veto pen, in the middle of an election year to boot. 

It’s time to discuss seriously the means by which President Bush can maintain some sense of order and mission to his remaining time in office or, as Bill Clinton found necessary in his dark days of 1994-95, the pursuit of relevance. Clinton found it in a gift from Newt Gingrich in the budget impasse over the government shut down. I have no good answer for Bush. In the wake of the immigration defeat, he will almost certainly have to find relevance to some extent in obstructing the various Democratic domestic schemes, but must also necessarily have some help from the war effort. In fact, so much depends on external events and the situation on the ground in Iraq, and almost no one hasn’t made up their mind on that, or is open to be persuaded, or is even paying much attention to progress reports. In addition, it is clear that the administration is obviously tired and frustrated and the arguments for victory in Iraq are now fewer and even less often heard or heeded. The President is to be greatly commended for his persistence and determination and I continue to hold out hope that his mission will be vindicated in the end. The problem is that the conservative movement and the party that carries its banner may be irreparably damaged in the meantime, and many of its stalwarts have already bailed out.

It is one of the great tragedies that the mission in Iraq, as well as the broader mission against Islamofacsism, has failed to gain traction on the points that were absolutely critical:

1. the ability to achieve total moral clarity,
2. success in identifying the enemy, and
3. convincing enough opinion leaders of the magnitude of the threat, the consequences of defeat, and the necessity of pre-emption.

To compound the problem, all of these were undermined by fifty years of encroachment by the insidious ideologies of multiculturalism and moral relativism in our cultural institutions. But I continue to assert that, whatever the outcome of the election in November 2008, the President who takes the oath of office in January 2009 will be the President of a nation at war, and, if not the Bush Doctrine, had better have something pretty close to it ready for implementation. If nothing else, this fact will continue to sustain his relevance.