Legal Commentary

Beldar on Posner on conservatism

By Beldar

U.S. Circuit Judge Richard Posner of the Seventh Circuit is a fine jurist, and a profound thinker and writer on matters economic and legal. To the extent he and Barack Obama rubbed an occasional elbow as part-time faculty at Chicago Law School, he's probably as close to a "conservative" as the latter encountered ? but that's very much a comment on the particular brand of economic (which is to say, important but restricted) conservatism associated with that law school and its host university. Nevertheless, Judge Posner has earned wide respect, and so I read with interest and an open mind this post on his blog in which he attempts to explore the question of whether the "conservative movement" is "losing steam."

Unfortunately, as Judge Posner has softened and dialed back his focus to consider, as he puts it, the "conservative movement" beyond the matters of his particular expertise and experience, he's offered up a very shallow critique that's essentially indistinguishable from that which a particularly bright member of the mainstream media ? but someone informed only by the mainstream media, and disinclined to dig beneath its canards and biases ? would create while ostensibly trying to stand in the shoes of conservatives:

By the end of the Clinton administration, I was content to celebrate the triumph of conservatism as I understood it, and had no desire for other than incremental changes in the economic and social structure of the United States. I saw no need for the estate tax to be abolished, marginal personal-income tax rates further reduced, the government shrunk, pragmatism in constitutional law jettisoned in favor of "originalism," the rights of gun owners enlarged, our military posture strengthened, the rise of homosexual rights resisted, or the role of religion in the public sphere expanded. All these became causes embraced by the new conservatism that crested with the reelection of Bush in 2004.

What an incredible non sequitur in the very first sentence of that paragraph ? as if the Clinton Administration had been an instrument, rather than an opponent, of "the triumph of conservatism"! Bill Clinton, of course, has never acted out of any other principle than what would promote the career of Bill Clinton, and he famously "triangulated" himself into claiming credit for welfare reform and (compared to what came later and to the Democratic Party's reflexive defaults) fiscal sanity. But to mention Bill Clinton's name in the same context as Goldwater, Rand, Kirk, Buckley, Friedman, Hayek, Kirkpatrick, or Reagan is a terribly bad joke.

So, too, is it to assert with a straight face that "the essentially conservative policies, especially in economics, of the Clinton administration, and finally the election and early years of the Bush Administration, marked the apogee of the conservative movement." Bill Clinton won't be remembered in history for a few years of budget surplus (enabled jointly by the economic boom resulting from the transition to an information economy and taxation and spending policies forced upon him by a GOP Congress), nor for welfare reform (enacted, again, despite the resistance of most of Clinton's own party), but for disgracing the presidency with a tawdry sex scandal which he turned into perjury and obstruction of justice, leading to his impeachment. Just a few lines earlier in this same post, Judge Posner had already written, mostly accurately, that the conservative movement, as exemplified by Reagan,

included the free-market economics associated with the "Chicago School" (and therefore deregulation, privatization, monetarism, low taxes, and a rejection of Keynesian macroeconomics), "neoconservatism" in the sense of a strong military and a rejection of liberal internationalism, and cultural conservatism, involving respect for traditional values, resistance to feminism and affirmative action, and a tough line on crime.

Now, I can understand how Judge Posner came to list those features of Reagan conservatism in that particular order, given Judge Posner's own specialties and interests. But ? with due respect to him ? "respect for traditional values" isn't just a minor sub-branch of "cultural conservatism." Rather, it is the basic and fundamental explanation for almost everything else that can be properly described as "conservative," and it was the specific source of conservatives' profound revulsion to Bill Clinton as a national leader and a man, regardless of what policies Clinton's pollsters had persuaded him to support in any given week or month.

And note, too, how Judge Posner completely buys into the labels the Left puts on conservative positions. I, for example, consider myself an ardent feminist because I believe my daughters should have rights and opportunities equal to those of my sons; I don't know any conservative who disagrees. My respect for women and women's rights likewise leads me to honor and respect not only those women who choose to work outside the home, but those who choose (whether forever or just for a time) the traditional paths of mother and homemaker. But if one accepts without further scrutiny a definition of "feminism" which embraces so-called "comparable worth" philosophy ? that is, which requires equal pay for work that in fact is not comparable, but of demonstrably lesser value ? well then, yes, all proponents of genuinely equal rights for the sexes are redefined to become "resistan[t] to feminism." And the precise same analysis applies to racial preferences under the guise of "affirmative action." Until one looks beneath, and then rejects, these misleading labels, one cannot recognize how profoundly hostile the associated concepts are to individual rights and liberties. I wish Judge Posner would re-read Orwell's "Animal Farm" because he's lost sight of how ludicrous it is to insist that some animals are "more equal" than others.

Judge Posner is, I would stipulate, a moral man, as evidenced in small part by his inclusion in his list of "conservative movement" principles the "respect for traditional values." And even if he under-rates the importance, to both the movement and the nation, of that respect for traditional values, I doubt that he fundamentally objects to the notion that morality may properly inform and guide policy. Yet because he is not religious, Judge Posner slights and then disrespects the extent to which religion, too, may properly inform and guide policy ? as distinct from dictating it. Count me in solidarity with my blogospheric friend Prof. Stephen Bainbridge, who felt compelled to disassociate himself from "the implicit assumption in Posner's post (as in so much else of his work) that religious discourse is inherently anti-intellectual (or, at least, non-intellectual)." Prof. Bainbridge points out that "a renewed conservative intellectualism would be deeply engaged with Catholic Social Thought," and that's exactly the right word to use ? "engaged." Public policy decisions ought not be dictated by, nor married to, any religion or school of religious doctrine; but neither should those debating public policy be reflexively hostile to or dismissive of concepts and arguments that may have originated from a religious believer or an exercise of faith.

Either as a moral man, or as a Christian, I can be appalled by the slaughter of unborn children in Planned Parenthood's abortion mills ? and I can likewise, as either, be concerned about the plight of the girl or woman who desperately wants off the path she finds herself on to motherhood. Both my moral and my religious views may properly play a part in my thinking and argument as I participate in a civil and reasoned analysis of either the public policy (very difficult) or the constitutional law (much clearer) of the ever-present debate over abortion rights. That doesn't make me "pre-occupied" with that particular topic, however, and it certainly doesn't disqualify my arguments on it. What ought to define the "conservative movement" is an easy, confident openness to ideas and principles, without the rigid notion so common among statists (poorly self-styled as "progressives") that any idea or principle which may be rooted in or even congruent with religion is necessarily a political heresy. Just as we recognize that racial preferences and welfare demean individual dignity and ultimately promote their own bigotry, we should recognize that reflexive hostility to religion and the religious is another form of bigotry.

These are the sort of intellectual blind spots ? or, less charitably characterized, the sort of incidents of intellectual flabbiness and complacency ? that can and should be forgiven in a man who's done so much else of real value in his genuine areas of expertise. I wage no jihad against Prof. Posner and his blog post, and I'd be glad to have him as a consistent tent-mate! But I welcome the day, if it comes, when he will recognize that on areas outside his own particular expertise in economics and antitrust law, he's let his intellect become stratified by adopting and then parroting double-speak from the Left. Regardless of whether it has "lost or is still losing steam," there's no doubt whatsoever that the "conservative movement" is currently out of power and reduced to "loyal opposition" status. But if Judge Posner's convinced that the "conservative movement" includes the likes of Bill Clinton and is hostile to daughters having the same employment opportunities as sons, then with due respect, I'm not looking to Judge Posner as the best forecaster of when, whether, or how conservatism and conservatives may return to a more powerful position.

Full post as published by BeldarBlog on May 13, 2009 (boomark / email).