E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
David Brooks' most recent column argues that President Bush's idea of compassionate conservatism was done in by the Florida election controversy, -- because it destroyed trust between Democrats and Republicans-- and by 9/11, because it drew attention away from domestic questions.
I don't agree. First, it's by no means clear that Bush's compassionate conservatism ever existed as more than a political slogan designed to gain votes in 2000, and to distance Bush from the unpopular Newt Gingrich. But to the extent that compassionate conservatism was more than a slogan, what did it in were Bush's two tax cuts and the Iraq war. Both took precedence over any other major domestic policies the Administration might have pursued, and both created huge deficits which undermined the chances of a series of new government domestic initiatives.
Brooks thinks trust was destroyed by Florida. It wasn't, or if so the damage was reparable. The fracas over the Florida election didn't keep Bush from trying to line up a few Democrats for his tax bill or No Child Left Behind. What destroyed trust ultimately was the Administration's political tactics once it got into office. It did not really work hard for political compromise, instead promoting strongly ideological policies in a vast number of areas, with a few notable exceptions like No Child Left Behind, which it then underfunded.
Brooks is right that the 2000 election does matter, but in a different way. After the election, everyone wanted to know how Bush would handle the allegations of illegitmacy: would he reach out to the Democrats or govern as if he nothing had happened? As it turned out, he governed as if he had won by a landslide. That is because he now had control of all three branches of government. If Bush had presented himself as a political moderate following the contested election, things might have been quite different in the domestic arena. But he did not do so, for four reasons. First, doing so would have undermined support from his conservative base. Second, it might be construed by the Democrats as a sign of political weakness or an implicit concession of the contested legitimacy of his presidency. Third, Republicans controlled all the branches of government. Thus, Bush and his advisors reasoned, why not push hard for one's agenda when you can? Fourth, as should be clear from what actually happened, Bush is not really a moderate at all. He is a religious conservative who believes in low taxes. Bush's compassion turned out to extend largely to his wealthiest donors in terms of tax relief, and to religious and social conservatives in judicial appointments, and also in various executive branch appointments that concern domestic policy. This was not a formula for either political moderation or a new form of compassionate conservatism, and so it is not surprising that neither of these things occurred.
I want to pause here and note that if Bush had come in with a Democratic controlled Congress, he would likely have been forced to compromise more, and this would might have led to more focus on compassionate conservatism as a triangulating or moderating strategy of domestic politics, similar to Clinton's, but approached from the opposite side of the ideological spectrum. Ironically then, winning all three branches by razor thin margins was a bad thing for compassionate conservatism as a new political approach. It encouraged the Republicans not to make compromises, but to push hard for a strongly ideological agenda while they still held all the levers of power.
Brooks also thinks that 9/11 diverted attention away from domestic concerns. Not really. 9/11 didn't require a war in Iraq. The latter is what really consumed the public's attention and the Administration's resources, and we now know that members of the Administration had been planning such a war for a long time. Again, if there ever was a thing as compassionate conservatism, it was preempted by the determination of the President's foreign policy team to go to war with Iraq as soon as practically possible.
Behind Brooks' argument is a deeper wistfulness, wondering about how things might have been otherwise in this administration. Could the Bush Administration have turned out differently than it did? Ironically, it would only have happened if the President turned his back on his core constituencies and avoided picking Dick Cheney as his Vice President and, more importantly, as a key advisor. Neither possibility was likely to occur. So on the day that President Bush was sworn into office by Chief Justice Rehnquist, compassionate conservatism was destined to be just a slogan.