A Response to Paul Mirengoff’s Latest Column
Paul Mirengoff writes in the Daily Standard:
WHEN PRESIDENT BUSH nominated Harriet Miers, conservatives who balked at her lack of conservative credentials were assured by some that they should infer Miers’s conservatism from the president’s confidence in her. The skeptics generally responded with the maxim “trust but verify,” and suggested that Bush, a non-lawyer, might not be able to discern the absence of a strong conservative judicial philosophy.
Some (most notably the lawyer and blogger Patrick Frey) went so far as to question whether Bush himself holds a strong conservative philosophy when it comes to domestic issues. Much of the president’s domestic policy suggests that he is a pragmatist who, though possessing some conservative instincts, tends to put results ahead of conservative principles: Rarely are conservative principles absent from the president’s domestic policy, but often they take a back-seat to short-term problem-solving.
(I’ll admit that the reference to that “Patrick Frey” guy is part of what interested me in Paul’s article — since that is yours truly.)
Paul then goes on to describe — and to some extent justify — Bush’s approach to political problems as a conservative “third way,” emphasizing problem-solving over conservative principles. Examples include the massive spending increases inherent in the Gulf rebuilding, or the prescription drug benefit.
Paul gives as a third example the “10 percent solution” to questions of affirmative action: taking the top 10 percent of students from schools across a state, regardless of race. “Unfortunately, though, Bush’s solution ultimately failed to vindicate core principles of color-blindness and non-discrimination. Choosing a facially neutral selection system for the purpose of achieving a racial result is a classic form of illegal discrimination under the civil rights law. Thus, problem-solving trumped conservative principles.”
I have nothing but the greatest respect for Paul. But I have two objections to Paul’s thesis. The main objection is that Paul has set up a false dichotomy between problem-solving and adherence to conservative principles. Conservatives believe in solving social problems too — they just propose to go about it in a different way.
Perhaps Paul, by referring to “problem-solving,” means to refer to the instant gratification of big-government or racially activist solutions, as contrasted with the long, slow haul that conservative solutions often envision. But the fact that conservatives’ solutions take place in a different manner does not mean that conservatives are failing to offer solutions. Paul’s failure to make this point clearer is a headlong plunge into the typical liberal trap of portraying conservatives as uninterested in social justice.
My second objection is that the “problem” to be “solved” is too often purely a political problem. In the post of mine that Paul links, I link to a previous post of mine in which I rendered my original complaint about Bush’s lack of conservative principle in the context of the Miers nomination:
To the “trust Bush” crowd: Bush signed an unconstitutional campaign finance reform law.
What “problem” was Bush trying to solve by signing McCain/Feingold? The problem of Americans trying to speak?
And, for those who consider the corrupting influence of campaign contributions to be the “problem,” let me ask: do you think McCain/Feingold solved it? Were you paying any attention during the 2004 election??
The problem, Paul, is that Bush too often sacrifices conservative principle, not for any concrete policy gain, but because he considers it good politics. When a president does this one too many times, it start to look less like pragmatism and more like political expediency. This is an all-too-common “third way” that Bush should learn to avoid.
With the nomination of Sam Alito, he is making a good start.
I think you misinterpret Bush. Remember that Reagan ran huge deficits, as well, and that he appointed Sandra Day O’Connor, largely because he wanted to be the first to appoint a woman to the Supreme Court.
I think the claim that Miers is a closet liberal is pretty thin. I think that a lot of conservatives have become pretty high and mighty, now that they don’t have to worry about Bush getting re-elected anymore. Good luck in 2008. I think we may be wishing we had him back four years hence.
I believe in loyalty to the guy who’s out front. And after the last two weeks, I wouldn’t trust the right wing punditocracy to watch my back, any more than the left wing. George Will and the folks at NRO are a bunch of elitists, and their judgment about what appointees are likely to do 10 years down the road is no better than yours or mine. No nominee has ever been put in a position of absolute unaccountability that a SCOTUS justice has. I think Alito will be all right, but I don’t think that Harriet Miers would have been the disaster she was made out to be either.
AST (a4db1c) — 11/1/2005 @ 9:33 pmDid you read Miers’s speeches? She sounded like a not-so-closeted liberal to me.
Patterico (4e4b70) — 11/1/2005 @ 9:37 pm“But the fact that conservatives’ solutions take place in a different manner does not mean that conservatives are failing to offer solutions. Paul’s failure to make this point clearer is a headlong plunge into the typical liberal trap of portraying conservatives as uninterested in social justice.”
On of my pet peeves. To this day when attempting to discuss the differences between liberal and conservative philosophy I get “conservative want to let people die in the streets” thrown in my face. Conservatives should be battling that meme, not reinforcing it as Mirengoff does. I’m surprised he fell into that trap. I’m guessing if he were confronted about it he’d lean heavily on his qualifier “short-term”.
Dwilkers (a1687a) — 11/2/2005 @ 4:27 amI continue to believe that the whole liberal-conservative thing is distracting and even misleading in the context of judicial appointments, and I would take issue with Paul’s characterization of our host’s objection to Miers as being based on whether she is sufficiently “conservative.” Having checked in here fairly regularly during the weeks when Miers was being considered, it seems to me that the problems that Patterico, and most of the regular commenters here, had with Miers related to her judicial philosophy or the apparent absence thereof, not whether she was a “conservative.” I’m sure Paul’s just using a common term as shorthand to refer to a particular judicial philosophy, but imho, thoughtful commentators like the folks at PowerLine should be doing what they can to expose this misuse of the term “conservative,” rather than accepting it and thereby helping to perpetuate it.
I’m persuaded that those favoring judicial conservatism are more often self-described conservatives (and even actual conservatives, whatever that may mean) than they are liberals — at least how those terms are commonly (mis)used these days (what do we call someone who is a conservative because he prefers conserving our Liberal democracy to discarding it in favor of statist authoritarianism and socialism?). But there are more than a few self-described conservatives who would be perfectly happy with a philosophy of constitutional fabricationism as long as the fabricationists interpreted the constitution to produce policies favored by those self-described conservatives. There are also a few, at least, self-described liberals who understand that fabricationism holds quite a bit of danger for their preferred policies, whereas originalism probably does not. So, can we get off the conservative-liberal thing already? If we’re asking whether a nominee is “conservative” in his or her policy preferences, perhaps we should be asking ourselves why this is important when the role of a judge, or even a Supreme Court justice, is to interpret the Constitution and laws, not change them.
TNugent (6128b4) — 11/2/2005 @ 5:23 am. . . it seems to me that the problems that Patterico, and most of the regular commenters here, had with Miers related to her judicial philosophy or the apparent absence thereof, not whether she was a “conservative.”
I think that’s right: qualifications and judicial philosophy. But I do find a correlation between political liberalism and judicial activism, which is why instances of her public expression of politically liberal ideas (such as in the speeches) concerned me — especially tied as they were to an apparent lack of respect for principles of judicial conservatism.
Patterico (4e4b70) — 11/2/2005 @ 6:05 amI agree that there’s a correlation. But, and sorry if I’m beating a dead horse, I think we’re better served by taking every opportunity to distinguish the two, even if the correlation is more than just coincidental. Conflating judicial conservatism and political conservatism is potentially a wedge to drive apart whatever conservative coalition may exist — consider the “just trust the President” argument a product of a failure to distinguish between the two. It also helps the other side maintain its stranglehold over most who lean left. But at the end of the day, conservatives are likely to vote Republican (although enthusiasm affects turnout) and lefties will vote Democrat (or, if we’re lucky, Green — a monetary contribution should to the Green Party/Nader for President campaign should be a line item on the GOP budget). It’s the apathetic (relatively) but massive center that is the prize. Maybe hopes of making the distinction clear are unrealistic, but then again, maybe not, in the wake of Roberts’ hearings and confirmation. It does not serve the cause of putting judicial conservatives on the Court to have Joe Average Apolitical/Moderate think that judicial conservative means political conservative. It makes them tune out, rather than listen. And make no mistake, our side has the more persuasive argument, as demonstrated by the 78 to 22 vote in favor of Roberts confirmation. Roberts himself delivered the message in a way understood by a majority of Americans. The Senators undoubtedly understood it as well, but more importantly, they heard, ear to the ground, and understood, the low rumbling sound of the stampede of public opinion and most of them wanted to make sure they either riding with the herd or were well out of the way.
TNugent (6128b4) — 11/2/2005 @ 12:38 pmActually, no. So then what is the best way to remove that corrupting “For Sale” sign on the doors of our government?
The corruption is undeniable. Even “Mr. Good Christian” Ralph Reed went pro-gambling for what? The money. http://www.chron.com/cs/CDA/ssistory.mpl/politics/3398326
The CFR laws do work at times though – just ask Tom Delay.
Tillman (1cf529) — 11/2/2005 @ 1:25 pmNow, Tillman, if y’all go askin’ Tom DeLay about CFR, then someone might think to ask mah opinion, an’ then Ah’ll have to do some readin’ up.
Ronnie Earl (6128b4) — 11/2/2005 @ 2:01 pmDamn, ah almos’ forgot how to spell mah own name!
Ronnie Earle (6128b4) — 11/2/2005 @ 2:03 pmThere TNugent goes again.
Patterico (4a5647) — 11/2/2005 @ 2:09 pmI hear Delay has a new nickname BTW – Smiley!
Tillman (1cf529) — 11/2/2005 @ 2:14 pm