eriodically over the last 7 years or more years that I have posted columns on Big Jolly Politics I have wrestled with writing posts on certain issues that have deeply divided conservatives and Republicans in hope of generating thoughtful discussion and reflection. As David Jennings can attest, some of my drafts have never made it to being published because we felt that it was not the right time to discuss the issue in the way I wanted to discuss it. But, with the filing deadlines for our primary season fast approaching, I believe now is the time to discuss a subject that has energized conservatives for more than 40 years: the role our social conservatism plays in our choices of candidates for public office. In doing so, I know that I am touching the “third rail” of Republican politics, but I feel that someone must start a long-overdue discussion about this issue for the sake of the future of conservatism and our party.
By the early 1970s we had experienced many upheavals and changes in our society, many of which were long-needed and most of which were cemented into our constitutional law through Supreme Court decisions. Many of these decisions were controversial at the time, but soon were respected and followed. But some of those decisions that involved the role of religion in our public institutions have remained deeply controversial. Then, in the early ‘70s, two more decisions were made by the Supreme Court—one not controversial at the time, and the other extremely controversial then and now—that began to animate our politics: Baker v. Nelson, in which the Court adopted a decision of the Minnesota Supreme Court finding no constitutional right for gay couples to marry; and Roe v. Wade, in which the Court found constitutional protections for a woman’s choice to have an abortion. The issues raised by these two cases, together with the issue of religious speech in the public square, have energized activists on both sides of the political spectrum ever since.
The paradox arising from the importance these issues have had on our politics is that they have very little to do with most of the day-to-day decisions, judgments and work of our elected officials at any level of government, but they are critical issues in defining who we are, and who we want to be, as individuals and a society. As a result of this paradox, we increasingly choose men and women to represent us in government based on where they stand on these issues that government is both poorly designed to address, and that government rarely should address. But when they do have to address them, all hell breaks loose—and the arguments over these issues can and do grind the normal functions of government to a halt until someone “wins” and someone “loses”.
Some of these battles have been and are still worth fighting—but we seem to treat every battle as if we were confronting Armageddon, when maybe some perspective should have been applied. Our conservative response to these issues, more often than not, has been to stand and yell “stop,” rather than to find a way to guide change in a way that preserves the best of our principles and traditions. Because of the trajectory that our society has taken over the last 40 years, the result of our actions has been to eventually lose on most of these issues, while paralyzing government from performing necessary reforms and functions that are within their core constitutionally delegated authority and competence.
Although this problem impacts the work of all elected offices, it is especially acute for judges in a state like Texas, where we select our judges in partisan elections. For a Republican to win a judicial primary in this state, the candidate must make two, often contradictory promises to voters: committing to preserving socially conservative values, while committing to apply the law “as written” rather than legislate from the bench. The contradiction arises because the constitutional law in this country has now enshrined many “values” that are not socially conservative, so applying the law “as written” requires the judge to abide by and enforce laws that have not preserved socially conservative values. And when the judge abides by and enforces such laws (which is, by the way, the primary constitutional responsibility of every judge throughout the United States, and especially trial court judges, who are constitutionally required to follow the precedents set by the governing appellate and Supreme Courts over their jurisdictions), he or she is seen as betraying socially conservative values, regardless of how the judge would have written the law if in the legislature or on the Supreme Court, or what the judge’s personal views may be.
Although, if I were on the Supreme Court or in a legislature, I would not have approved of some of the laws that have evolved over the last 40 years, I expect the judges who sit on our courts to abide by and enforce these laws. If we don’t expect that from our judges, we will destroy one of the cornerstones that has maintained our liberties down-through the centuries—the rule of law, rather than by the whim of men. If we don’t like it when judges ignore the law to thwart legal policies with which they disagree, we cannot encourage judges to ignore the laws with which we disagree.
So, regardless of how strongly I may feel about recent constitutional decisions made by the U.S. Supreme Court, I will ask only two questions of each candidate in our primary:
- Are you qualified and competent for the bench you are seeking?
- Will you follow and apply the law as it is written by the legislature or a higher court, rather than ignore such law or create new law?
More often than not, the person who will answer both questions “yes” will be conservative both in temperament and values, so that he or she will reflect the values I want in an elected official—but the primary test I will apply is the one to determine their judicial temperament and competence, rather than ask them to contort themselves over the election-year contradictions that our social-conservative politics has created for them over the last few decades.