Federal Judiciary

Thesis Statement -- By: The Editors

The revelation, if such it can be called, that the Republican candidate for Virginia wrote a socially conservative master?s thesis in 1989 brings up two questions. The less important is what it tells us about that candidate, Robert McDonnell.

The thesis, in one much-cited passage, criticizes Eisenstadt v. Baird, a 1972 case in which the Supreme Court ruled that states could not restrict unmarried people from buying contraceptives. Now it is not at all obvious that the Constitution has anything at all to say about contraception, however much we may think that laws against it are unwise. The Court had, seven years previously, ruled that such laws could not be applied against married people because of a right to marital privacy that they pretended to locate in the Constitution. In Eisenstadt the Court extended the right to unmarried people?which struck many observers at the time and since as illogical. McDonnell was one of them.

You may be wondering what Eisenstadt has to do with how the state of Virginia will be governed over the next four years. So are we. If McDonnell wins, he will not be able to overturn the Supreme Court?s decision. Nor has he ever shown any sign in his legislative career of being interested in banning contraception. The revelation in the Washington Post that McDonnell held conventional conservative views about Eisenstadt is mildly interesting, although hardly surprising. But the Post and Democrats are carrying on as though he had drowned a campaign aide.

They think they have more on McDonnell, of course. In the thesis McDonnell also expressed disagreement with ?feminists? and concern that their ideas were harmful to the country. Most self-described feminists -- a minority of American women, by the way -- no doubt think the same thing about social conservatives. We are supposed to be scandalized?

Even some of McDonnell?s clumsiest old formulations turn out to be less disturbing than they appear at first glance. So he thought that government should favor married couples over homosexuals and ?fornicators?? That?s what marriage law does. A much-denounced passage about ?working women,? in context, expresses McDonnell?s concern that the structure of government aid to child care biased families? decisions toward commercial day care. He wanted that aid to be provided on a neutral basis so that women who wanted to stay home could do that, too. We agree.

Nothing in McDonnell?s record in office suggests that he obsesses about the social issues to the exclusion of other concerns. Nothing in it suggests hostility to working women. His record suggests, rather, that he is a mainstream conservative. So the more important question is what this controversy signals about the intentions of the Washington Post. The newspaper was hardly evenhanded, even by liberal-press standards, in the last statewide race in Virginia. In 2006 it played up negative stories about Sen. George Allen, the Republican, and played down negative stories about his opponent, Democrat Jim Webb (or didn?t run such stories at all). Webb won in a squeaker. Is the Post hoping to replicate this performance? It has given this rather unimportant story two front-page stories and, in yesterday?s Metro section alone, two follow-ups. Perhaps the Post feels invested in McDonnell?s opponent, Creigh Deeds, whose victory in the Democratic primary is widely attributed to the newspaper?s endorsement.

If the Post is trying to influence the race in this manner, so far it has not been successful -- the polls have continued to show a McDonnell lead. McDonnell has been campaigning as someone who will work constructively on education, transportation, and the economy, while Deeds has been notably vague on these issues. But we can expect Deeds, and perhaps the Post, to continue to try to persuade voters that the candidate who isn?t talking about social issues is the one who wants a culture war.

Full post as published by Bench Memos - National Review Online on September 03, 2009 (boomark / email).