The WSJ has a very interesting article today on a possible fissure within the conservative community on Supreme Court nominees. It notes, for example, that the business community and social conservatives are sharply divided in their assessment of some current justices, perhaps most notably Stephen Breyer:
Pro-business legal scholars and practitioners say the former law professor and aide to liberal Sen. Edward M. Kennedy has the best understanding of corporate issues of any current member of the court. ... James Dobson, president of the Colorado-based conservative- advocacy group Focus on the Family, once said Justice Breyer ought to be impeached because he was too sympathetic to gay rights.
The article goes on to note that Scalia and Thomas periodically give the business commuinity fits, while they are usually the darlings of the social conservatives.
What's perhaps most interesting about the article, however, is the suggestion that there is a fundamental divide between business and social conservatives on issues as basic as federalism:
What business wants from the high court sometimes undercuts basic conservative principles. One example has to do with federal authority and states rights. Corporations increasingly have sought protection from unfavorable state laws and court rulings by arguing that federal law "pre-empts," or sets aside, that of the states. This argument could be used to rein in ambitious state attorneys general, such as New York's Eliot Spitzer, who has tried to apply more stringent standards for corporations than those sought by the Securities and Exchange Commission or the Environmental Protection Agency.
Religious conservatives, by contrast, tend to embrace the more traditional conservative position favoring states rights. So they encourage states and municipalities to stretch or go beyond high court precedent on abortion, prayer in public or religious displays. Tony Perkins, president of the Family Research Council and a former Louisiana legislator, says he is well aware that businesses wants national rules that pre-empt the sometimes-conflicting patchwork of state and local regulation. But "that is inconsistent with the predominant judicial philosophy that the president has nominated," he says.
I think the article has overstated the divide on this issue. Pro-business conservatives can be very pro-federalism when it comes to issues like corporate governance, where they tend to favor state regulation. (See my article The Creeping Federalization of Corporate Law.) Where business tends to want national rules is on issues like tort reform and environmental regulation. Social conservatives may have different priorities, as illustrated by Family Research Council President Tony Perkins' complaint that Bush was devoting too much attention to Social Security and tort reform rather than defense of marriage, but they are unlikely to oppose business efforts at national reform in this area. As Grover Norquist once observed:
The reason the modern Republican Party holds together, and for 20 years has grown and gotten stronger -- even though some people from outside have thought they saw fissures -- is it is a low-maintenance coalition. Nobody in the coalition wants anything at anyone else's expense on their primary vote-motivating issues.
Exactly.
In fact, many social conservatives affirmatively support much of the business agenda. Pat Robertson, for example, has noted his "strong support for tax reform and tort reform." The Illin ois Family Institute opines that: "The need for tort reform in Illinois is not just a serious issue, but is fast becoming a crisis."
Hence, it should be possible to find nominees who will be acceptable to both sides of the conservative community. Indeed, the Journal article flags two likely choices:
Two lower- court judges have drawn interest in corporate circles because they represented companies on regulatory matters before going on the federal bench: John Roberts of the Washington, D.C., Circuit Court of Appeals and Michael McConnell of the 10th Circuit Court of Appeals in Denver.
There are some who worry that Roberts might turn out to be another Souter, making him a questionable compromise choice. In contrast, McConnell's nomination to the 10th Circuit was supported by many social conservatives, such as the Traditional Values Coalition, while the leftist American Constitution Society's blog villified him as "a leader of the anti-choice forces."
In sum, this is just one more reason to think McConnell would make an ideal compromise choice, precluding any risk of fissure within the movement.
