They wrestle over a prescription-drug bill but not, really, over whether the entire approach is defective. We hear the grand figure that under the Senate bill, we would undertake a trillion-dollar entitlement over ten years. That translates to: taking a trillion dollars from some people and giving it — not exactly to a different set of people, but to people identified by different means.
The emphasis is of course on help to older people, the principal beneficiaries of whatever the reduced cost would be in buying drugs. Older people have more to worry about in looking after their health, but less in looking after school bills and mortgage payments. It would be very difficult to prove, over the long run, that older people will, as a class, benefit from the pending bills. There is no tax bill on the table that exempts older people from taxation, and it is probable that they will devote the same percentage of their income as before to medical expenses.
The House bill being manifestly superior to the Senate bill, one wonders: What happened to President Bush? He is, incidentally, everywhere criticized abroad, and, now, by Democratic presidential candidates, as autocratic, domineering. How to account for his passivity in most matters of legislative, to say nothing of judicial, consequence? He fought hard for his tax bill and, of course, for his nominees to the courts of appeal. But on most other matters, it is as if he did not exist. The Supreme Court has pronounced itself arbiter of all serious questions having to do with states’ rights. The president was manifestly pleased that the Court took over the whole affirmative-action problem, and he confessed himself “pleased” that the Court acknowledged the utility and the pleasures of diversity.
Diversity will, one supposes, be interpreted by some as license to incestuous love, and Judge Kennedy can be counted on to look into “spatial” and “more transcendent” dimensions of the question. We know only this, that laws seeking to regulate moral questions will govern only if the Supreme Court okays them.
Mr. Bush has to concern himself with the care and feeding of American conservatives, here defined as men and women who believe that there are institutional matters which governments rightly concern themselves with. Most such have for generations been taken for granted. It was simply inconceivable, up until a few years ago, that a judge could not display the Ten Commandments in his courtroom, unthinkable that marriage could take place except between a man and a woman.
The latter distortion creeps its way into law, and the Bush administration hasn’t evolved a strategy for coping with it. Senate majority leader Bill Frist has said that he would approve a constitutional amendment to define marriage in the traditional way, but Mr. Bush has not endorsed such an amendment. In the best of worlds he would not need to, confident that the states would continue to reflect public sentiment on the matter. But of course state legislatures are only in session as long as state courts permit. And the Supreme Court is hovering behind its high altar, waiting to pronounce the word of five justices. It would require argumentation no more devious than the ruling in the Lawrence case to declare that legal sanctions on marriage, narrowly specified as between man and woman, are a denial of equal protection under the law.
The attitude of Mr. Bush on the matter of the other two branches of government is remarkably compliant. He has not exercised the veto power once, matching the record of John Quincy Adams. The judiciary is apparently secure from his criticism. Supporters can say that he has worked hard for his judicial nominees, which is true. But what you must not bet the farm on is that nominees of Republican presidents are going to remain originalists on reaching the Court. The constitutional massacre of Lawrence and the University of Michigan rulings would not have prevailed save for the affirmative votes of justices appointed by Reagan and Bush Sr.
All presidents, nearing voting time, tend to be dominated by the animal need for reelection. Mr. Bush has something to worry about here. His popularity rating in the polls seems to be going down about one half point per U.S. soldier killed. Eighteen soldiers, nine points down, from 61 percent approval to 52 on his handling of the Iraq question. He will very much need the enthusiastic endorsement of conservatives who believe that a chief executive should be more assertive against lobbyist-dominated congressmen, and more alert to the co-optation of moral authority by the courts. There are plenty of reasons for conservatives to vote hopefully for Bush, but he has to remind them what those reasons are.