-- 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.