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October 13, 2005
No sclerosis on the right
J.R. Dunn in his October 11th article posits that the conservative reaction to Harriet Miers' nomination is an indicator that the movement is showing signs of ideological sclerosis that has besotted the Left. While fine points are found in this article, particularly in delineating what ails the Left, and while the conservative movement may in fact be starting to show such signs, I just don't think that this issue is a good example of such an effect.
First, conservatives have been for the last several decades doing the heavy lifting of convincing their fellow citizens of the wisdom of our principles and the policies that spring from them. As evidence for that, I point to the remarkable success we've had in getting into and holding elected offices. Conservatives win on conservative platforms and when Republicans stray from these principles, they take a beating at the ballot box.
What we today regard as liberalism: hostility to traditional institutions, discrimination based on sex and race, heavy regulation of business, contempt for private property rights and celebration of rank hedonism, are largely eschewed by the masses. Our most corrosive and controversial Leftist policies have been imposed upon us by the courts, not agreed to by democratic means.
That said, of judicial conservatism Dunn states that it
This is hardly a fair assessment. It has never been a simple policy certainly not in the last few years, it has been a key strategic goal. The bench is the fortress that enshrines Leftist policy, and it simply cannot remain as it is.
Realigning the Court so that it stops imposing unwanted policies is a crucial and completely defensible strategic goal. How can you argue that the Supreme Court is somehow unimportant or that advocating for its realignment is a mere article of faith rather than an unavoidable confrontation? I'd accept that it is a strategic orthodoxy that the liberal Court must be undone but the importance of that task and the difficulty in getting to a place where that task can be done is itself unassailable, making that orthodoxy a perfectly rational one, not to be dismissed.
Neither is this an arcane affectation that most Americans care little for. Affirmative action, gay marriage, government seizure of private property to benefit another property owner are just a few matters that hang in the belly of Americans like bad chili. Most Americans may not be activist wonks, but they know that something is amiss among the courts, and they want something done.
If I get a bit testy over a lackluster Supreme Court pick, it's because I worked my fanny off to get this president elected even with his shortcomings. All of those things for which I did not agree were worth holding my nose over so long as he picked good judges, particularly at the highest level. He promised to do that and so far he's been true to his word.
Roberts just barely crossed the threshold of believability as such a jurist. Obviously a very intelligent man and a great scholar, I can believe that he believes our Constitution is a firm contract, not a flexible scrim subject to the whims of our robed masters. With the unwritten rule that if a Republican nominee doesn't perform a late—term abortion during your confirmation hearing, Democrats won't have to vote for them, a candidate can never be too articulate about judicial philosophy. Trusting that Roberts was a good pick took some faith, but that faith had some foundation to rest upon. Miers simply doesn't clear that hurdle for a wide swath of conservatives (I'm still thinking about it), and their concerns are perfectly legitimate, not merely the shouts of a mob furious that Miers failed to pray her conservative Rosary in a just—so fashion.
The outcry against Miers may prove to be ill—placed or even counterproductive, but the fault lies at the feet of the man whose job it was to choose a candidate. Those who struggled under withering fire from our political opponents to establish the Presidential beachhead have expectations that we have earned the right to hold. Those of us who are lying in the sand with our rhetorical rifles at the ready would like to have confidence that the engineers our Commander in Chief has entrusted to clear judicial obstacles know how to use a sapper charge.
This is not unreasonable, nor is it an article of quasi—religious faith. Any fool can see that the Left has had the high ground on the High Court for a generation, and that stronghold must fall if we are to prevail. A half measure, an unnecessary retreat or the mere appearance of either has had a completely predictable result. You only get so many cracks at that target, they need to be well—placed. We ground forces with victory in our nostrils aren't going to roll over if we get a whiff of betrayal when our nostrils are filled with pending victory.
If Miers joins with Scalia, Thomas, (hopefully) Roberts and the occasional Kennedy in sending the barbed wire and concrete barricades of judicial activism to the four winds, all will be forgiven as our troops in Congress and the states pour through the gap. If she turns out to be a fuzzy—minded justice like O'Conner or Souter, this will likely be the end not for the conservative movement, but the last stand of the country—club Republicans who habitually accept the hard work of activists only to sell them out for kind words from the cocktail party crowd.
Tim McNabb 10 13 05