A Heap of Precedents

Slippery slopes, stare decisis, and popular opinion

Jonathan Rauch | July 1, 2005

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Two possibilities present themselves. One is expediency, or, to use the sort of strong language that Brown herself sometimes favors, cowardice. On this theory, Republicans agree with Brown but know her views are controversial, indeed unpopular, and prefer not to make a case for them.

If so, this would not be the first time expediency has won the day in politics, but Republicans should beware. Liberals learned the hard way, with court-approved or court-imposed policies like forced busing and racial quotas, how dangerous it is to put in place policies and nominees that they could not defend in public debate. If Republicans hope to install small-government judges without publicly embracing small-government views, they are traveling the same road that led Democrats to political purgatory and made "liberal" a dirty word.

A second possibility is that Republicans ran from Brown's views because they regard them with ambivalence, or even embarrassment. On this theory, what Republicans support is not so much Brown's philosophy as her life story and the opportunity to put a conservative black woman on the federal bench. After all, Brown is a small-government ideologue in an age of Big Government conservatism. Republicans control the whole federal government and are not shy about using it. They want to be able to enact the sort of "economic, environmental, consumer, and labor regulations" that DeMint insisted Brown would uphold.

If so, Brown's nomination put Republicans in a bit of a pickle. Endorsing her philosophy would tie their hands; renouncing it would leave everyone wondering why they wanted her on the bench at all. Rather than confronting the tension between Big Government conservatism and small-government nominee, the Republicans pretended there was no tension. They maintained that Brown, like the Republican Party itself, would denounce Big Government without actually doing anything about it.

Either way, Republicans have come a long way from Reagan, who would have spoken as proudly of Brown's ideas as of her childhood. Lott was almost right: The Brown debate was not a proud hour for principled Republicans.

© Copyright 2005 National Journal

Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.