Social Conservatives vs. Fiscal Conservatives

Posted on July 5, 2005

With the surprise retirement of Supreme Court Justice Sandra Day O'Connor, the guessing game has begun. It's clear that President Bush will choose a conservative to fill her seat. But will he pick a social conservative or a fiscal conservative? Because increasingly, the two do not seem to go hand in hand.

O'Connor was seen as a moderate on social issues and more conservative on fiscal issues. But she supported Roe v. Wade, and was viewed overall as a moderate.

O'Connor, who plans to step down after 24 years, was the most business-friendly justice on the nine-member court. She voted to cut punitive damages, curb class-action lawsuits and enforce arbitration agreements against consumers. "As somebody who stands at the podium regularly on behalf of business, I always thought I had a sympathetic ear in Justice O'Connor," says Carter G. Phillips, a Washington lawyer with Sidley Austin Brown & Wood who has 45 Supreme Court arguments to his credit.
That may not hold true for O'Connor's replacement. Social conservatives, focused on such issues as abortion and gay marriage, want President George W. Bush to appoint a justice along the lines of Clarence Thomas and Antonin Scalia. Their rule-oriented approach to the law often leads them to dismiss the more pragmatic concerns of businesses.
In business cases that divided the court over the past six terms, Scalia and Thomas opposed the views of the U.S. Chamber of Commerce twice as often as O'Connor did. In the 2002-03 term alone, Scalia and Thomas rejected business positions in cases involving Norfolk Southern Corp., Nike Inc., State Farm Mutual Automobile Insurance Co., the pharmaceutical industry and the insurance industry. "Social conservatives admire Justices Scalia and Thomas, but Justices O'Connor and Kennedy have been much better for business interests," says Walter Dellinger, a Washington lawyer and Duke University law professor who was the Clinton administration's top Supreme Court lawyer. "Pragmatism works well for business. Ideology often does not."

Bush is expected to announce his pick later this week or next week. And he defended his friend Alberto Gonzalez from the vitriol launched at him by social conservatives over the 4th of July weekend. If Bush chooses Alberto Gonzales, it could be a triumph for women's rights: the sketchy paper trail he left as a judge seems to indicate he's pro-choice, but it's far from clear what his views are. Gonzales sat on the Texas Supreme Court and did strike down a parental notification law as unconstitutional. And that's why the social conservatives can't stand him, saying that "Gonzales is Spanish for Souter." If it's really true, that sounds muy bueno to me.