The Wimpification of Conservatism

The way they are acting, you would think that was on a par with being a member of an organized crime family.

It is not just the politicians who are getting mealy-mouthed. Even the conservative talking heads, whose stock in trade is controversy, pull in their chins and lower their eyes when Chuck Schumer launches an attack against Roberts. Rather than snap back that being a practicing Catholic and pro-life is not a disqualification for sitting on the Supreme Court, they go to great lengths to make clear that there is nothing on the record to lead one to assume that Roberts is pro-life or opposed to Roe v. Wade. Some of the conservative commentators are even calling our attention to the fact that Roberts once wrote that Roe v. Wade was “established law.” That was supposed to be a point in his favor!

It is a weird scenario: conservatives in the media with a long track record of proclaiming their opposition to legal abortion and pointing out the flaws in the reasoning behind the majority’s decision in now want everyone within shouting distance to know that John Roberts has never made a public statement in agreement with them. Every time one of Roberts’s opinions surfaces from when he was a young lawyer in the Reagan administration on matters such as school prayer and abortion — one of those that sounds as if it could have been written by Antonin Scalia — they rush to the microphones to proclaim that it should be seen merely as a representation of the views of his client. You can bet your last dollar that the scenario would be different if we were in the middle of a discussion about a liberal judge nominated by a Democratic president. The liberal commentators would be clashing every cymbal they could find to call attention to the candidate’s record in defense of a “women’s right to choose.”

You can also be sure that if a liberal nominee’s wife was a member of a pro-choice group, the commentators on the Left would not be making the point that we cannot come to conclusions about him based on his wife’s political activism. They would not sound like the conservatives who are falling over themselves to assure us that we can’t assume anything about Roberts’s personal beliefs from his wife’s membership in the group Feminists for Life, much less from the fact that she is reported to be a daily communicant. There were times when I thought the Republican message was that Roberts should not be held accountable for his wife’s quirky religious behavior; that she is, after all, a lawyer and a modern woman with a mind of her own.

The same defensiveness could be seen when the Democrats spoke in somber tones of the possibility that Roberts was a member of the Federalist Society. It was as if this staid discussion group was a secret society of some sort. Secret society? Egads: the group has 35,000 members, mostly lawyers and law students. It has 180 law school chapters, and sponsors hundreds of public events open to the press and public. Yet rather than defend the organization, we were told that Roberts was not aware he was a member of the group and may have inadvertently signed a membership form while attending a conference as a young lawyer. Now that may very well be the case. But why crawl into a hole over Roberts’s association with a group such as this? Why are they tiptoeing around the notion that Roberts is a Republican and a conservative? You wouldn’t think that the Republicans control the White House and both houses of Congress.

So what is going on? Are the conservatives really turning into wimps? Are they embarrassed about their beliefs? No; they will get feisty again once these judicial nominations are secured. What we are witnessing is the “battle of the buzz words,” an effort to sway public opinion on Bush’s Supreme Court nominees. The Democrats are looking for something that will capture the imagination of what might be called the “swing vote” on judicial nominees. The Republicans are parrying.

We must keep in mind that, as in presidential elections, a good portion of the public already has its mind made up over what kind of Supreme Court justices it wants. Informed people who follow politics closely know whether they prefer a judge like Antonin Scalia or one like Ruth Bader Ginsberg. They understand that judges who are strict constructionists tend to favor conservative causes, and that those who are judicial activists tend to come down on the side of liberal causes.

But there is also a significant segment of the population that has not a clue to what is meant by a strict constructionist or judicial activist, much less the political implications of securing a majority of justices on the Supreme Court with these leanings. These folks can be swayed. I am not saying that they are stupid (though some may be). It is just that they do not have an interest in politics. They are interested in other things, maybe better things: music, computers, archaeology, stamp collecting, mystery novels — you name it.

But they think of themselves as good citizens. For the most part they are. They will pay attention when the story about a judicial nomination reaches center stage. They will read about it in the newspapers. They might even, as a civic duty, tune in to a show like Meet the Press to find out what is going on. They will talk about it with friends and colleagues at work.

These folks can get riled up if a notion — even an irrational one — gets planted in their minds. They can become indignant enough to write their local newspapers and their senators if they think something unfair or improper — or un-American — is taking place. They are the targets of the Democrats’ campaign against John Roberts. They will be even more in the crosshairs in the upcoming battle over William Rehnquist’s successor.

If they can be made suspicious that a nominee is a “religious extremist” who will “impose his personal beliefs” on the rest of society, they will get out their pens. Thus the Democrats’ focus on Roberts’s Catholicism. If they hear that a judge is in a “secret society,” they will have none of it. They have seen movies about such things. Thus the brouhaha over the Federalist Society. If they latch onto the notion that a “strict constructionist” is some sinister sort of character opposed to equal rights for women and for minorities, it will take a crow bar to pry them loose from it.

The Democrats are trying to make one or more of the above ideas register with enough of these people to make a difference in the debate over Bush’s nominees. They are throwing everything they can find up against the wall to see what will stick. The seemingly “wimpy” Republicans and conservatives are trying to thwart them, to deny them their buzz words.

Will this Republican strategy give us a Supreme Court with a solid bloc of justices voting with Antonin Scalia and Clarence Thomas? There are times when the best defense is not a good offense, but a good defense. It won’t be long before we will find out if this is one of them.

James Fitzpatrick's novel, The Dead Sea Conspiracy: Teilhard de Chardin and the New American Church, is available from our online store. You can email Mr. Fitzpatrick at

(This article originally appeared in The Wanderer and is reprinted with permission. To subscribe call 651-224-5733.)

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