Tuesday, August 03, 2010

Extremism in the Face of Obama is No Virtue

-- Posted by Neil H. Buchanan

Recently, Bob Hockett posted "SSRN: Stop Socialism Right Now" on this blog, in which he (hilariously, in my opinion) mocked Republicans for claiming that President Obama is a socialist. His broader point was that Obama's detractors seem to be opposed to having the government attempt to solve any problem. With a claim that is already absurd on its face, Hockett did not have to travel down a long road in applying reductio ad absurdum to the idea that government is always the enemy. With no line to draw separating core government functions from evil socialism, one cannot help but share his suspicion that Obama's detractors also oppose America's publicly-provided courts, police, and so on.

Hockett's post led to a spirited exchange on the comments board. Professor Orin Kerr, my colleague at George Washington Law School, argued that the exaggerated claims on the far right that Obama is a socialist are matched by absurd claims on the left "that ideas that are actually quite radical are secretly but widely held among conservatives -- such as claims that 'conservatives are trying to undo the New Deal,' 'conservatives don't believe in government,' etc. The common dynamic, I think, is the false suggestion that the other side is really extreme."

Kerr's comments elicited a very interesting exchange with Hockett and Mike Dorf, both of whom took the position that the current situation is simply not one in which both sides are reasonable but sometimes unfairly embarrassed by the actions of their more extreme elements. I encourage readers to review all of the comments on that post, because the exchange was (with some exceptions, outside of those three combatants) an impressive example of the value of civil discourse.

I was especially struck by Kerr's suggestion that it is absurd to claim that "conservatives are trying to undo the New Deal." Hockett mentioned the first example that jumped to my mind: Judge Janice Rogers Brown of the D.C. Circuit. Brown, who was nominated to the bench by President George W. Bush, was one of the subjects of Senate Democrats' filibusters of Bush's more extreme judicial nominees. She was ultimately confirmed in a deal that (if I recall correctly) led to seven of the fourteen filibustered nominees joining the federal judiciary. Brown, indeed, had long been an outspoken proponent of the neo-Lochnerian approach to jurisprudence -- a view of the law which holds that the government has no authority to regulate business activity. Minimum wage laws, consumer protection laws, financial regulations, and so on are all violations of the contract clause of the U.S. Constitution, making the entire New Deal (and everything else that is typically called "the modern state") unconstitutional.

Admittedly, Brown is only one judge. She is, however, on "the nation's second highest court," as the DC Circuit is sometimes called. She was put there by a conservative president, with the backing of every Senator from his party, after years of fierce opposition to her nomination by Democrats. She is not some extreme anomaly who slipped through the process. Moreover, the conservative Senators who supported her, and their party brethren, are (at best) not distancing themselves now from the claims of some in their ranks that everything the government does is a violation of the Constitution.

In part, therefore, the dispute here can be seen as an exploration of what Kerr meant by the phrase "secretly but widely held," in describing the claims by liberals that conservatives have gone off the rails by adopting extreme anti-government positions. Few would doubt that there is a principled conservative position that falls well short of the Tea Partiers' "Read the Constitution!" extremism. It is unfortunately true, however, that the leaders of the Republican Party, and of the conservative movement (to the extent that those two groups differ), seem to be embracing -- not at all secretly, and very widely -- the positions that Hockett has rightly mocked.

In addition to Kerr, conservatives like David Frum have recently made some highly welcome comments condemning the craziness among the energized Right. Sadly, their voices are the ones that are increasingly becoming marginalized in the national debate among Republicans and conservatives. (Earlier this year, Frum was even forced out of his long-held position at the American Enterprise Institute for saying, among other things, that "we're discovering we work for Fox.")

What most worries me, however, is precisely that there are so few voices on the right who are taking less radical positions at odds with the Republican Congressional leadership. Recently, I have discussed the shockingly ill-informed (and outright cruel) efforts by Senate Republicans to derail the extension of unemployment benefits for several million long-term unemployed workers. It is bad enough that there was no general movement among conservative economists to say, "Hey, we're conservative, but these arguments against extending unemployment benefits are unworthy of a D-minus exam in Econ 101." It was simply shocking, however, to see prominent conservative thinkers taking public positions that actually supported the Republicans' repetition of ridiculous arguments about benefits causing people to lengthen their spells of unemployment. These arguments are, at best, simply irrelevant -- possibly true during good economic times, but absolutely inapplicable during these extremely bad times. Yet the people who could have had a "Nixon in China" level of credibility on the subject went out of their way to support their political allies in an unprecedented act of heartless political opportunism, at the expense of millions of formerly gainfully employed Americans and their families.

I know that it must be difficult to be a principled, non-Tea Party conservative these days. I could imagine (in a far different world) finding that the party I support has suddenly become very extreme, putting me in the position of wondering how to respond. Today, however, we are not seeing such insanity on my side of the field. It would be great if the Republican Party were not really as extreme as the rhetoric of all of its leaders, but the evidence is too overwhelming to ignore. I hope that Kerr, Frum, and others have success in taking their party/movement back. Right now, however, Hockett's satire is uncomfortably close to reality.


egarber said...

I tend to agree that much of the radical narrative is now part of core Republican ideological thought; indeed, it’s a visible part of formal state platforms across the country. Virtually gone is anything resembling a pragmatic middle. It's very difficult these days to find a Republican who discusses differences as a matter of degree (which is all we're really talking about). Instead, if Obama supports something, it’s by definition another *kind* of thing (even if say, national healthcare mandates were initially a Republican idea).

[Of course, to your point, it's an absurd position, because very few Republicans advocate the logical extension of their stated principles: the elimination of Medicare, Social Security and the like. If the existence of public infrastructure by rule is a form of unacceptable "socialism", that ship sailed a long time ago, with a good bit of Republican support].

My overall contention is that Republicans have simply run to the right of themselves -- today's party** makes previous versions appear "liberal" by comparison.

**in their rhetoric at least. We saw that when they actually held power under W, the party didn't hue at all to its stated principles of "small government" and balanced budgets.

Off the top of my head, there are two clear examples that exemplify this internal shift:

1. Richard Nixon proposed a national healthcare plan that is more liberal in a lot of ways than what Obama actually pushed through. Yet the latter is supposedly a socialist / communist solution. If so, what is the former?

2. On the judicial side, if the party loathes the notion of constitutional privacy, we need look no further than Republican SCOTUS appointments to assign blame: 5 of the 7 Roe majority justices were appointed by Republican presidents.

There are just two of probably 100 similar examples...

Patrick S. O'Donnell said...

Some principled conservatives still exist, but they are indeed marginalized. Consider, for instance, former Secretary of State George P. Shultz, who is fighting against global warming here in California.* Or take David Klinghoffer who, in a recent op-ed for the LA Times, lamented the conservative movement's shift from the search for meaning in private and public life to a politics of
demagoguery and hucksterism.** Reflecting on the beginnings of conservatism in this country, he writes, "Conservatism wasn't just a policy agenda, a set of partisan gripes or a football team seeking victory on the electoral field. Above all, it was a satisfying, sophisticated critique of modern, materialist culture, pointing a way out and up from liberalism."

(I wonder if Orin thinks the comments at Volokh Conspiracy are at all reflective of the views of folks that populate contemporary conservatism.)

*Please see: http://www.latimes.com/news/local/la-me-cap-20100802,0,5403557.column

**Please see: http://www.latimes.com/news/opinion/commentary/la-oe-klinghoffer-conservatism-20100801,0,3905768.story

Sam Rickless said...

The radical narrative was entrenched in right-wing circles by Ronald Reagan, who, more than any other politician of the modern era, was treated as an ideological touchstone by Republican candidates for the Presidency in 2008. Reagan was (not totally unreasonably) worried about the rising cost of entitlement programs and the ease with which Federal and State bureaucracies are created and then become entrenched. But the rhetoric was not measured, it was radical:

"The ten most dangerous words in the English language are, 'Hi, I'm from the government and I'm here to help.'"

There is a reasonable conservative objection to wasteful, inefficient, or counterproductive government programs (farm subsidies?) hidden in this quote. But it is dwarfed by the larger message, which is that

"In this present crisis, government is not the solution to our problem; government is the problem." (First Inaugural Address)

Again, the "in the present crisis" here did refer to an economic crisis to which the government *may* have contributed. But what is left of this quote, in the minds of many (most?) on the right, is simply the general statement without the qualification.

I believe that the general statement has become a virtual mantra on the right. It is connected to the calls for less government regulation and lower taxes. I think we are all familiar with Grover Norquist's famous quip on NPR in 2001 (Norquist was one of the architects of the 1994 Contract with America and a strong voice in the conservative movement):

"My goal is to cut government in half in twenty-five years, to get it down to the size where we can drown it in the bathtub."

An iron law of politics states that the way to get a jump on the competition within your own party is to be more radical than your otherwise like-minded competitors. The reason is that being more radical gets you noticed, and getting noticed is a precondition of being elected (or, at least, relevant). [One can garner attention by being *less* radical than one's competitors, but then one gives the impression that one is not true-blue.]

Given sophisticated electoral gerrymandering on both sides, there is no incentive for political rhetoric to become more measured. Quite the opposite. And reality follows rhetoric as sure as day follows night.

Bob Hockett said...

Thanks for this post, Neil,

It is characteristically breathtaking in its lucidity and comprehensivity. Here are two quick follow-up thoughts:

1) I propose a new index - what I'll call the 'whino' index - as a means of determining whether a party is in the grip of its fringe elements at any given time. Here's how it works. Take the final three letters of the pseudo-word 'whino' (which I hereby propose as a variant on 'whining' and 'wino' to connote both whinging and intoxication), and conduct a sort of Rorschasch test: as yourself what letter or letters tend to appear before the 'ino' suffix most often these days. It seems to me that one of these is, surely, the letter 'r,' to form the term 'rino,' which of course stands for 'Republican in name only,' which is the term of opprobrium slapped by fringe Republicans upon all non-fringe Republicans these days. By contrast, it seems that we seldom, if ever, encounter any such term as 'dino' - apart, of course, from Hannah Barberra cartoons about neolithic families (families in which, ironically, today's fringe Republicans strike me as belonging).

2) I am also reminded, in the present context, of a post here at DoL last November, titled 'The Republican Party as Pakistan.' Here is the link, for any who'd like to go back and take a look: http://www.dorfonlaw.org/2009/11/republican-party-as-pakistan.html .

All best, and thanks again for the great post, Neil,


egarber said...


>>**in their rhetoric at least. We saw that when they actually held power under W, the party didn't hue at all to its stated principles of "small government" and balanced budgets.

I mean hew. Damned University of Georgia spelling skills :)

michael a. livingston said...

I may be beating a dead horse (elephant?), but I am not sure that I see the value of ritually decrying Republican "extremism" or of attempting to distinguish principled from unprincipled conservatives from a vantage point outside the movement. I think it might be a more constructive exercise to deconstruct (so to speak) the views of the alleged extremists and see if they are really as inconsistent as first appears. For example many Republicans, while criticizing the Obama Administration for the continuing high level of unemployment, may believe that the evil associated with expanded Government power (e.g., by adopting an additional stimulus or extending unemployment benefits) outweighs the financial benefits of such programs. Or they may simply represent a different constituency--for example, small businesspersons--for whom the costs associated with health care or environmental legislation are felt more immediately than they are (say) for college professors. At the very least, the assumption that an opponent is irrational or illogical should be the last, rather than the first, step in an intellectual analysis: such assumptions rarely contribute to understanding and even less so to constructive debate.

Bob Hockett said...

I agree with Michael Livingston that there would likely be little value in ritually decrying Republican extremism. Hence I am pleased to be able to report that I find nothing ritualistic in any DoL posts or comments concerned with that extremism. These people - today's rightwing extremists - are themselves these days ritualistically laying absurd and destructive claims. (Is the routine 'socialist' charge anything else?) It is accordingly well that they be called out on them, for precisely the reasons adduced by Michael L. I also endorse Michael's suggestion that the extremists' claims be 'deconstructed.' Indeed, reductio ad absurdum arguments are one time-honored means by which to do precisely that. The reduction in question takes what purports to be the principle which underwrites the extremist's claims, shows that bona fide adherence to that principle would induce endorsement of additional policies that the claimants purport not to endorse (e.g., elimination of the DEA or the military), and concludes that the claimants in fact are in need of some other principle - one that they do not at present transparently avow - if they are to justify their policy recommendations. Let us continue to 'deconstruct' after this fashion, as well as other fashions. Let a thousand flowers bloom.

michael a. livingston said...

OK but the deconstruction of the conservative position seems to be only for the purpose of attacking and not understanding it. I honestly don't see how this advances the ball in an academic sense, unless one is simply rewarded for ritual restatement of essentially the same position. It certainly doesn't convince anyone on the other side of the argument.

Neil H. Buchanan said...

Thanks to Bob for his blush-inducing assessment of my post, as well as his further contribution to the discussion.

Sam Rickless's description of the role that Reagan played in the radicalization (and emptying of actual content) of the conversative movement was very helpful. However, like Mike Dorf (in his comments on Bob's post on July 22), I continue to search in vain for the Democrats' side of the "radicalization to get noticed" supposed equivalency between the parties.

I was especially bemused by Sam's invocation of Reagan's infamous, "Hi, I'm from the government, and I'm here to help" quip. When I gave a talk at the Mississippi College of Law on health care reform in February, I carefully and explicitly took no position on any health care proposal of any kind. Instead, I simply said that health care inflation must be brought under control, or the economy will be ruined. Even so, a leading member of the local bar began an attack on me during Q&A by repeating Reagan's line. This is, obviously, not about content.

I am very intrigued by the implication of Patrick O'Donnell's parenthetical question. The comment board on the TaxProf blog is not used much, but when it is, it is far too often filled with content-free rants from anti-tax zealots. One can see much the same thing on other "pro-business" blogs' message boards: a seething hatred not just of those who disagree, but even of those who simply ask neutral questions.

As Bob suggests, deconstructing these attacks allows us to determine whether or not there is an actual argument from the other side to which we can respond. As Bob shows, there is none, which changes the appropriate response from people like Bob and me. If there is no actual argument to which we could respond, then the only thing to do is to point this out (repeatedly), as part of our small effort to clarify the public discussion.

egarber said...

Here's my explanation of why liberals don't seem to have the same swagger:

There are basically two dynamics at play in our aggregated society: the private and public sectors.

Liberal philosophy sees a role for both, given the circumstances -- so it's inherently a pragmatic approach to problem solving (i.e., potential solutions from both sectors are typically on the table when a large-scale problem arises). In other words, liberals have a philosophically broader toolbox; making public investments in certain areas is perfectly acceptable and desired. That makes for more nuanced and possibly less entertaining positions, which I think also explains why my side often flops on talk radio.

On the other hand, conservatives are philosophically one-sided, in that private solutions are (almost) exclusively preferred. So it becomes sort of like an orthodox religion, and the resulting zero-sum calculus means only one side (the private solution) holds credibility. Or put more simply, the closer one is to absolutes in his guiding principle, the more likely it is that we're going to hear extreme language in the execution of it.

So in the end, conservatives talk more radically (imo), because they see themselves defending a beach-head (society against government). Liberals are more pragmatic, because they see a certain harmony -- not conflict -- between the public and private sectors. That difference affects both issue positions and language.