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Will George

Liberals, Lawyers, And a Choice

By George F. Will
Friday, October 15, 2004; Page A23

"It would be an irony of fate," said the governor as he left home and headed to Washington for his presidential inauguration, "if my administration had to deal chiefly with foreign affairs, for all my preparation has been in domestic matters." George W. Bush leaving Austin in January 2001? No, Woodrow Wilson leaving Princeton in March 1913.

Wednesday's debate finally focused attention on domestic policy, including such supposedly secondary matters as courts and the Constitution, education and taxation -- the government's claim on the individual's labor. And, most important, the stress that the retirement of 77 million baby boomers will put on the welfare state.

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In the second debate, when President Bush at last unsheathed the L-word, Kerry -- who in 1991 proclaimed "I'm a liberal and proud of it" -- flinched: "Labels don't mean anything." The reason conservatives do not talk like that was illustrated Wednesday. Kerry, a statist liberal in a conservative, anti-statist country, begged the country to believe that the health care reform he, as the government's foremost officer, would have the government implement is "not a government plan." When Bush increased the megatonnage of his bombardment with the K-word -- "Kennedy" -- Kerry responded not by defending liberalism but by trying to flank Bush on the right with five genuflections to "fiscal responsibility," three to "fiscal discipline" and one to being "fiscally sound."

Wednesday, as in the rest of the campaign, the presidential power to shape the federal judiciary received remarkably little attention. Any president who serves two terms likely will replace half that judiciary; Bush already has replaced one-quarter. But he is about to become the second president (Carter was the first) to serve a full term without filling a Supreme Court vacancy. It has been 10 years since a new justice (Stephen Breyer) was confirmed; not since 1812-1823, when the court had only seven members, has it gone that long unchanged. Bush's second term could be dominated by nomination battles: Chief Justice William Rehnquist just turned 80, and the average age of the nine justices is 70.

Liberalism, having lost its ability to advance by persuasion, increasingly relies on litigation. In its flight from arenas of representation, liberalism has used the judiciary as its legislature. Hence the exultation of Ron Brown, then Democratic Party chairman, addressing an American Bar Association forum immediately after the 1992 election: "My friends, I'm here to tell you that the lawyers won."

The Democratic Party's love -- the word is too weak for the phenomenon -- for lawyers is expressed in countless courtesies, from blocking tort reform to the multiplication of laws and regulations that make it impossible to navigate life without a lawyer in tow. Not surprisingly, as of mid-September, lawyers were this year's leading political contributors, with 73 percent of their $132.4 million going to Democrats. In contrast, oil and gas interests, which Democrats demonize and Kerry reflexively deplored Wednesday evening, give 81 percent of their contributions to Republicans, but as of mid-September, their total to both parties was only $16.7 million.

This election is the last before the boomers begin retiring in 2008. It will be won by either a reactionary liberal, whose plan for coping with the demographic deluge consists of complaining about any changes in the welfare state's entitlement menu, or an activist conservative who Wednesday night tartly told his opponent that "a plan is not a litany of complaints."

The centerpiece of Bush's second-term agenda is his "ownership society" tapestry of tax incentives for individuals to exercise increased responsibility for their personal security and opportunity. The contrasting conservative and liberal emphases on freedom and equality are clear: Tax-favored accounts for retirement, medical and education choices promote the attitudes and aptitudes of autonomous individuals exercising the freedom to choose. Liberalism's unchanging agenda involves increased dependency on government in the name of equality. Thus James W. Ceaser and Daniel DiSalvo of the University of Virginia, writing in the Public Interest, say:

"A Bush victory will eclipse in its immediate impact the incumbent reelections of Bill Clinton in 1996 or even of Ronald Reagan in 1984, when the campaign messages were broad and vague. Reagan's 'morning in America' and Clinton's 'a bridge to the twenty-first century' stood for little."

When Bush left Austin 45 months ago, planning tax cuts, educational standards and faith-based initiatives, he had no inkling that foreign affairs would dominate his first term as much as they did Woodrow Wilson's second. Wilson's happier first term produced landmark achievements, such as the income tax and the Federal Reserve system. A second Bush term, involving tax as well as welfare reform, might be as creative domestically as was Wilson's first term.

georgewill@washpost.com


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