With the Harriet Miers controversy, conservatism has begun its descent into ideology. Unlike the Left, conservatism has never been an ideological movement, in the sense of possessing an overarching system of thought demanding acceptance in toto. American conservatism is based on principle, firmly—grounded, straightforward concepts: that men are lower than angels, that governs best which governs least, and that innovations must be examined under the presumption of error. Apart from these axioms, everything else was open to debate. Until today, there has never been an orthodox party line in conservatism.
The consequent flexibility and dynamism have been a major factor in the conservative resurgence. Operating from principle rather than within a structured system has enabled conservatives to remain open to consensus, to drop outmoded concepts, to react quickly to opportunities and crises. It has given us the ability to maneuver. This ability in turn has taken us from the Goldwater era, when conservatism was the punchline of a joke, to a new millennium where the problem is managing an empire.
Compare this to the Left, which has steadily lost ground during the same period. Thanks in large part to its Marxist roots, the Left has been a slave to ideological thinking. Major questions of goals, values, and policy are taken as settled. Debate and discussion are limited to trivia or tactics. Can anyone recall an example of the Left debating anything at all of import? Try to imagine any given leftist questioning an element of the progressive program. Start with abortion.
In point of fact, we don't have to imagine anything. All we need to do is look at the case of Nat Hentoff. A few years ago, Hentoff suggested that the ACLU consider defending anti—abortion protestors whose rights had been violated. In response, Hentoff, than whom there is no greater living defender of individual rights, was ousted from the organization's board and shunned by many of his former comrades. Nor is Hentoff alone — one can add Sidney Hook and Christopher Hitchens without even stretching to the rest of the alphabet. To defy any particular of the left—wing intellectual structure is to become one of the damned. The left enforces strict guidelines as to who may be elevated to positions of influence and power. Their leadership becomes a priesthood for which ritual acts and strict adherence to the credo are essential prerequisites.
Which brings us to the current uproar, and the question of why a large segment of the conservative elite is treating Harriet Miers, and beyond her the President of the United States, with the same disdain the ACLU treated Hentoff. The vehemence of opposition, prior to arrival of the data supplied by Judiciary Committee hearings, suggests that the defenders of the orthodoxy are at work.
In and of itself, conservative judicial strategy is hard to fault. The persecution of Judge Bork amounted to a public declaration that the Left would make its last stand in the courts. Conservatives took up the challenge with an incremental policy of placing constructionist judges on all levels of the federal judiciary — no more appointments of hacks or as rewards to party loyalists — with the intention of steadily moving the courts back to the center. For nearly twenty years, this program, despite setbacks, has been a remarkable success
Now George W. Bush is accused of violating this particular covenant. It's hard to see how. The court is still gliding steadily to the right. John Roberts' confirmation hearings performance should have calmed all doubts as to where he stands. With Scalia and Roberts both serving, the question of intellectual firepower becomes redundant. It's not surprising that Bush sought a different line of legal experience with his next appointment. The plain fact is that Bush has pushed farther than any conservative judicial reformer has ever demanded. His appointments to lower courts have been spectacular, and Chief Justice Roberts won over most conservative early doubters of his nomination. And all brought off without setting the opposition ablaze. It's difficult to view Bush's performance as anything less than masterly.
So why the controversy? Because changing the judiciary has become a covenant. Conservative judicial strategy is no longer simply a policy. It's a dogma, much the same as abortion or gun control is to the Left, and is being treated by conservative mandarins as quasi—religious doctrine, not open to discussion, to be carried out with the precision of ritual. Everything must be done as was handed down. The selection must come from the anointed and none other.
Harriet Miers' failure to join the Federalist Society is seen as damning evidence of possible heretical thoughts. Her failure to have argued in print for strict constructionism raises questions of her commitment to the one true faith. She hasn't followed the career path of a scholar or conservative legal activist. She hasn't even argued in public for conservative legal positions. Very suspicious evidence of possible apostacy or heterodoxy. Elevation to the secular priesthood requires certain steps, sacrements and tests. If it's not done in exactly that way, then it can't be done at all. Not even if you happen to be the President of the United States, charged by the Constitution with picking nominees with the advice and consent of the Senate.
This is why the response to Bush's move is so venomous, so hysterical, and so
contemptuous. This is not good news for conservatism. Intellectual and ritual hardening of the arteries is the major reason for the collapse of the Left over the past four decades. No new ideas have been allowed to redirect the ideological palimpsest. So we have Iraq—as—Vietnam, serious political candidates running on platforms of class warfare, and major films depicting heroic resistance to Joe McCarthy. Like an imperial state, an ideological structure has to die completely before it can be replaced. The Left is nowhere near that point yet. There will be people genuflecting to Che forty years from now, never fear.
The danger is that conservatism could go the same way, losing its current dominance due to obsessions that have no meaning for the average voter. It comes down to a question as to whether or not we want to settle for the same stale brew as the Left — the empty posturing, the kowtowing to received opinion, the angels—on—pinheads dialectic. If not, a confrontation is in order.
Fortunately, we have the means. The internet, grass roots organizations, talk radio, and other channels for opinions not delivered from on high keep conservatives talking — and arguing among ourselves. We are not passive recipients of dicta handed down from on high by those who consider it their right to tell the President whom to nominate, and to define the qualifications for the nation's high court. If that ever becomes the case, then we know that our movement will be in trouble.