Change the legal culture

The flap over the nomination of Harriet Miers to be an Associate Justice on the United States Supreme Court raises an important question. What is the best way to change the jurisprudence of the Court away from its culture of legislating from the bench? 

One approach is the strategy of the Federalist Society, training brilliant legal minds to overwhelm their liberal opponents on the Court with ruthless intellectual firepower. A slightly different approach is the incrementalist strategy of President Bush, advancing the conservative culture with small incremental victories, often won beneath the national radar, with little overt combat catching the attention of the media or the public.

For years now, ordinary rank—and—file conservatives have been spoiling for a fight, keeping alive the humiliations of previous Supreme Court nominations: the neologism—generating borking of Robert Bork in 1987 and the 'high—tech lynching' of Clarence Thomas in 1991.  For twenty years we have longed for a solid Republican Senate and the chance to ram a brilliant conservative jurist right down the liberals' throats.

But President Bush has decided against ruthlessly getting even. In the spring of 2005, moderate Republicans and Democrats in the Senate stopped short of an explosive showdown over the Democrats' judicial filibuster, tagged by the Democrats and the media as the "nuclear option." Then in the summer, the President nominated the brilliant John Roberts to the Court. Chief Justice Roberts, who demonstrated a patient and agreeable demeanor in his confirmation hearings, may or may not become a scourge to the liberals like Justice Scalia. His paper trail bore no such evidence. Time will tell, but his confirmation hearings lacked spectacular explosive combat.

Now the President has nominated Harriet Miers to the Court. Whatever Ms. Miers is or is not, she is certainly not made in the mold of a Federalist Special Forces veteran, highly trained in the martial arts of constitutional combat. The President is sending a message to his supporters.  He is saying that there will be no knock—down drag—out fight over the Supreme Court on his watch.  He is sticking to his incrementalist strategy.

The Federalist Society strategy, getting brilliant conservatives on the Court is not wrong, but it is limited. It doesn't solve the bigger problem, the drift of conservative justices leftward after they get on the Court, as the social, intellectual, and professional environment of the Beltway and the broader legal culture are brought to bear on them. The only way to achieve a conservative Court for the long term is to change the legal culture of the United States.

That, of course, means a conquer—and—hold strategy.  It requires conservatives to win the argument of ideas, not just on the Court but outside, in the nation's legal culture, and beyond that, in the entire moral—cultural sector as well.  It is in the moral—cultural sector that conservatives have their big problem. F.S.C. Northrop pointed out 50 years ago that Anglo—Americans cannot expect to win the battle of ideas solely with the seventeenth—century ideas of Locke and the eighteenth—century ideas of Burke, while our opponents are fighting with the ideas of every European thinker since, from Rousseau to Heidegger. Combat is taking place on a wider battlefield than the the fields of Sweet Reason. The rise of postmodernism shows how right he was.

It took twenty years for conservatives to get a grip on the ankle—biting nuisance of postmodernism, that irritating invention of French poseurs that is the culmination of two hundred years of German philosophy. But while conservatives fumbled, liberal professors taught a generation of students that middle—class constitutional democracy was never about the rule of law or a high—minded separation of powers.  Oh no, they said, it was a cunning bid for power.  The history of the United States was nothing but a narrative of power, an apology for the ruling white male European elite and its shameful path to power.

Conservatives think that all this left—wing thought is ridiculous—a politically correct fantasy that no sensible person would consider for a moment.  The trouble is that otherwise sensible people do believe it.  Not only do they believe it, they proselytize it throughout the culture: in the government schools, in the elite universities, and above all in entertainment and the arts. Even Supreme Court Justices swim in an intellectual and cultural sea polluted by these ideas.

Conservatives cannot hold the Supreme Court and keep conservative justices conservative until they conquer and hold the cultural territory around it. It is not just a question of ideas, but a question of culture, even of taboos—creating an America in which elite careerists of every political hue would be more afraid of violating conservative taboos than liberal taboos.

In today's America it is perfectly acceptable to violate old taboos about sex and religion. Prior to her confirmation, Justice Ruth Bader Ginsburg, an otherwise raher prim lady,  unashamedly advocated the legalization of prostitution, for example. But it is absolutely forbidden to violate liberal taboos about race, class, and gender in public.

Conservatives will be able to dominate the Supreme Court when, and only when, we have driven the liberal totems and taboos out of the public square. When that day dawns, we will not need to fight the culture war by trying to sneak stealth conservatives onto the Supreme Court to avoid bloody confirmation battles.  For then we will own the culture.

Christopher Chantrill (mailto:chrischantrill@msn.com) blogs here.  His book, Road to the Middle Class, is forthcoming.

The flap over the nomination of Harriet Miers to be an Associate Justice on the United States Supreme Court raises an important question. What is the best way to change the jurisprudence of the Court away from its culture of legislating from the bench? 

One approach is the strategy of the Federalist Society, training brilliant legal minds to overwhelm their liberal opponents on the Court with ruthless intellectual firepower. A slightly different approach is the incrementalist strategy of President Bush, advancing the conservative culture with small incremental victories, often won beneath the national radar, with little overt combat catching the attention of the media or the public.

For years now, ordinary rank—and—file conservatives have been spoiling for a fight, keeping alive the humiliations of previous Supreme Court nominations: the neologism—generating borking of Robert Bork in 1987 and the 'high—tech lynching' of Clarence Thomas in 1991.  For twenty years we have longed for a solid Republican Senate and the chance to ram a brilliant conservative jurist right down the liberals' throats.

But President Bush has decided against ruthlessly getting even. In the spring of 2005, moderate Republicans and Democrats in the Senate stopped short of an explosive showdown over the Democrats' judicial filibuster, tagged by the Democrats and the media as the "nuclear option." Then in the summer, the President nominated the brilliant John Roberts to the Court. Chief Justice Roberts, who demonstrated a patient and agreeable demeanor in his confirmation hearings, may or may not become a scourge to the liberals like Justice Scalia. His paper trail bore no such evidence. Time will tell, but his confirmation hearings lacked spectacular explosive combat.

Now the President has nominated Harriet Miers to the Court. Whatever Ms. Miers is or is not, she is certainly not made in the mold of a Federalist Special Forces veteran, highly trained in the martial arts of constitutional combat. The President is sending a message to his supporters.  He is saying that there will be no knock—down drag—out fight over the Supreme Court on his watch.  He is sticking to his incrementalist strategy.

The Federalist Society strategy, getting brilliant conservatives on the Court is not wrong, but it is limited. It doesn't solve the bigger problem, the drift of conservative justices leftward after they get on the Court, as the social, intellectual, and professional environment of the Beltway and the broader legal culture are brought to bear on them. The only way to achieve a conservative Court for the long term is to change the legal culture of the United States.

That, of course, means a conquer—and—hold strategy.  It requires conservatives to win the argument of ideas, not just on the Court but outside, in the nation's legal culture, and beyond that, in the entire moral—cultural sector as well.  It is in the moral—cultural sector that conservatives have their big problem. F.S.C. Northrop pointed out 50 years ago that Anglo—Americans cannot expect to win the battle of ideas solely with the seventeenth—century ideas of Locke and the eighteenth—century ideas of Burke, while our opponents are fighting with the ideas of every European thinker since, from Rousseau to Heidegger. Combat is taking place on a wider battlefield than the the fields of Sweet Reason. The rise of postmodernism shows how right he was.

It took twenty years for conservatives to get a grip on the ankle—biting nuisance of postmodernism, that irritating invention of French poseurs that is the culmination of two hundred years of German philosophy. But while conservatives fumbled, liberal professors taught a generation of students that middle—class constitutional democracy was never about the rule of law or a high—minded separation of powers.  Oh no, they said, it was a cunning bid for power.  The history of the United States was nothing but a narrative of power, an apology for the ruling white male European elite and its shameful path to power.

Conservatives think that all this left—wing thought is ridiculous—a politically correct fantasy that no sensible person would consider for a moment.  The trouble is that otherwise sensible people do believe it.  Not only do they believe it, they proselytize it throughout the culture: in the government schools, in the elite universities, and above all in entertainment and the arts. Even Supreme Court Justices swim in an intellectual and cultural sea polluted by these ideas.

Conservatives cannot hold the Supreme Court and keep conservative justices conservative until they conquer and hold the cultural territory around it. It is not just a question of ideas, but a question of culture, even of taboos—creating an America in which elite careerists of every political hue would be more afraid of violating conservative taboos than liberal taboos.

In today's America it is perfectly acceptable to violate old taboos about sex and religion. Prior to her confirmation, Justice Ruth Bader Ginsburg, an otherwise raher prim lady,  unashamedly advocated the legalization of prostitution, for example. But it is absolutely forbidden to violate liberal taboos about race, class, and gender in public.

Conservatives will be able to dominate the Supreme Court when, and only when, we have driven the liberal totems and taboos out of the public square. When that day dawns, we will not need to fight the culture war by trying to sneak stealth conservatives onto the Supreme Court to avoid bloody confirmation battles.  For then we will own the culture.

Christopher Chantrill (mailto:chrischantrill@msn.com) blogs here.  His book, Road to the Middle Class, is forthcoming.