The End of My Political History

Following Thomas’s 52-48 approval by the Senate, President Bush signed the Civil Rights Act of 1991, and his pre-war slide in the polls continued. The confirmation was the last bold, principled act of the Bush Administration.

Having spent six years in the Reagan-Bush Administrations—the last six, bad years—I flatter myself in claiming some modest share of responsibility for the deterioration—especially if such a mea culpa will enable me to claim some share in its brighter moments. Of course the Reagan Administration’s promise always exceeded its performance, and the promises (abolition of cabinet departments, for example) were not necessarily prudent. For all their virtues, the Reaganites did not understand the way in which the regime had been corrupted during the sixties and seventies. The problem is not “big” government but rather that government has become a faction, instead of the arbiter of factions. This transformation has made prudence, and not a simple adherence to past forms, more important than ever.

I came to Washington in June, 1986 to work for the Reagan Administration as a special assistant to Clarence Thomas—real government experience for this Ph.D. in political philosophy—and stayed on to tutor this prince in rudiments of political philosophy and to learn about Washington from him. In a year John Marini 1 would join me and various visitors at the Equal Employment Opportunity Commission (EEOC) in exchanging ideas with a real American hungry for knowledge. I have described Thomas elsewhere as an American exemplar of Aristotle’s proud man. 2 The success of his tutors’ efforts and his own virtues cannot be measured by the farce of the Judiciary Committee’s hearings but will be tested over the length of a career which should last—God-willing—well into the next century. I predict that a wider circle than conservative activists will see his appointment—even in the light of the controversies that accompanied it—as the best act of the Bush Administration.

The conservative frustration with the Supreme Court underscores the need for fundamental political principle to inform political debate. The Republican selections who have constantly frustrated conservative goals have come from the legal establishments—Burger, Powell, Blackmun, Stevens, O’Conner, Kennedy, and Souter. These are unlikely sources for the constitutional statesmanship required of the Supreme Court—especially in an era of a politicized judiciary. Conservative rhetoric about “judicial activism” and “interpreting the law, not making it” was insufficient to explain the nature of the selections conservatives really wanted. Consider the Democrats’ recent choices: Byron White, Arthur Goldberg, Abe Fortas, and Thurgood Marshall. These are all political choices, intended to reward some element of the liberal Democratic Party. Among recent Republican nominees, only O’Connor, Scalia and Thomas could be said to have had politically appealing features when they were nominated, and Justice O’Connor’s selection reflects candidate Reagan’s promise to appoint a woman—not an encouraging start for an Administration which attempted to make quotas a primary issue.

Of the three stalwart conservatives, both Scalia and Chief Justice Rehnquist are avowed legal positivists. That is, their contribution to the political debate—which can still be considerable—is limited by their need to accept the will of the democratic bodies. In pre-judicial writings Thomas noted the importance of the higher law in American political life. Thus, even with the qualifications on natural right he emphasized in his hearing testimony, Thomas has the most potential to invigorate the political debate within the judiciary. Moreover, others, in the explicitly political branches of government, must take up his themes of equality and liberty.

But I digress from the political questions at hand. Following Thomas’s 52-48 approval by the Senate, President Bush signed the Civil Rights Act of 1991, and his pre-war slide in the polls continued. The confirmation was the last bold, principled act of the Bush Administration. Even before the Hill of beans, I feared the opportunists in his Administration would seek political gain from his nomination and dump him if the pressure became too great. A Pyrrhic victory? The Bush Administration itself seemed to treat it as one. It was as though it had seen its mission accomplished. In any event, I felt as though my mission in Washington had been accomplished. My political history had effectively ended. And the sickening feeling accompanying the moment may have been appropriate.

Of course this does not explain the rest of the Bushoisie’s subsequent a-political meandering. Characteristic of a navy aviator who has survived crash landings, Bush selected master-of-disasters Samuel Skinner, who had no real political experience, as his chief of staff to replace the unbearable Sununu. And, true to his fault-loyal form, he stood by his old, losing team.

But, as Plato and Lincoln taught us, regimes cannot be identified with individuals, though we can never quite get over making comparisons. And the Bush Administration should have had ambitions far beyond this individual’s.

Again, to flatter myself, I note one area of the civil rights debate I could have been more active in, disability rights. Conservatives were constant critics of the Americans With Disabilities Act (ADA). 3 Yet they should have considered gaining the support of a constituency which damns bureaucracy, has pro-life inclinations, and prides itself on independence—all leading traits of the disability rights movement. Claiming disability rights as a civil right, these activists go on to argue that empowerment, education, and “mainstreaming” should be the aims of those with disabilities. They reject the medical model of disability—that persons with disabilities need to be cared for, with all statist implications. Thus, the disability rights perspectives on civil rights is quite different from the guarantee of equality of results tortured out of the 1964 Civil Rights Act. The ADA is, however, at best a one-step backward, two-steps forward proposition. The employment provisions of the ADA do not demand quotas for those with disabilities, require that applicants be “qualified,” and encourage them to enter the mainstream of American life. Unfortunately, the conservatives saw only the one-step backward—costly regulation. And, though the President emphasized the ADA in his campaign, he made it an issue of compassion and did not tie it to themes of work and independence reflecting higher principles.

I give the disability rights movement as one example of a constituency which conservatives should have been appealing to. The “Reagan Revolution” is not some static entity but one which must be constantly renewed. Conservatives must be willing to look in different places for new friends.

In any event, I leave the Administration far more of a libertarian than I was when I came to Washington. Despite my respect for all the fine career employees I met at EEOC, I don’t trust that institution to protect my or anyone else’s liberties. As bureaucracies are wont to do, it institutionalizes existing conflicts and creates new business for itself when it cannot deal with the task at hand. 4

But, as I indicated at the beginning of these hurried reflections, advocating the mere destruction of existing governmental structures is an insufficient basis for a conservative return to power. An affirmation of constitutional government, in all its dimensions, is a surer foundation. This will require a measure of thoughtfulness unknown since the Founding. The recent inept discussions of abortion and “family values” come immediately to mind. The pro-life forces appropriately compare their cause with the anti-slavery crusade. But are they abolitionists? Who is their Lincoln, who ties their cause to constitutional government? The ridicule of “family values,” one prescient observer notes, may make it impossible to talk about “values” at all—which would be the greatest victory for the serious discussion of morality in the twentieth century. Morality, after all, is not about “values” or tastes or, most empathetically, expressions of willfulness. It is more visible in our current political debate, and it always has been at the foundation of constitutional government, as all great American statesmen have stressed.

Notes

1. See his The Politics of Budget Control: Congress, the Presidency, and the Growth of the Administrative State (New York: Taylor and Francis, 1992) for his reflections on the transformation of the separation of powers in the twentieth century. Return to text.

2. For more on the content of my exchanges with now-Justice Thomas, see “Natural Rights and Oversight: The Use and Abuse of ‘Natural Law’ in the Clarence Thomas Hearings,” Political Communication and Persuasion, January 1993. Return to text.

3. I thank Clarence Thomas’s successor as EEOC Chairman, Evan J. Kemp, Jr. and his chief of staff, Robert Funk, for permitting me to serve them and their ambitious efforts to reformulate the debate on civil rights. Under the Democrats, the ADA will be hijacked as the 1964 Civil Rights Act was; it will be turned into a quota law with a burdensome regulatory regime even worse than its current critics fear. In any event, I find the public accommodations and transportation provisions to be the most dubious part of the law, given the high costs they will impose. A greater emphasis on tax credits for employers would have been better, but the more regulatory approach was first on the table. Return to text.

4. But do my sympathies for the disability rights activists indicate that Washington has corrupted my judgment? This is a legitimate question. For more on civil rights, see Richard Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (Cambridge: Harvard University Press, 1992); Hugh Davis Graham, The Civil Rights Era ( New York: Oxford University Press, 1990) and my review in Review of Politics, Fall, 1990 p. 655; and Herman Belz, Equality Transformed (New Brunswick: Transaction Publishers, 1991) and my review inPerspectives on Political Science, Winter 1992, p. 35. See as well my forthcoming “Hack Like Me,” review of Andrew Hacker’s Two Nations in The Review of Politics, 1993. Return to text.

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