The tempting of conservatism: in supporting Bush and the GOP, don't lose yourself.

HAVE conservatives abandoned their principles in the Bush era? Has partisanship trumped ideological conviction? If we are speaking of the activists, journalists, think-tankers, and other unelected opinion leaders of the Right, the answer is plainly no. Conservatives have had no trouble denouncing President Bush's steel tariffs, his Medicare bill, his profligate spending, and so on. Libertarian-minded conservatives have roundly criticized the Patriot Act. Social conservatives have complained that the administration has not done more to resist gay rights. Conservatives have, by my lights, been if anything too unreflective in their criticisms, too unwilling to acknowledge the political circumstances that constrain (even if they do not determine) Bush's actions on Medicare or trade.

It is true, however, that conservatives have become more partisan in recent years: more heavily invested, that is, in the fortunes of the Republican party. But this is not an entirely bad thing since there are principled reasons for it. The fact is that conservatives' fortunes are tied to those of the Republican party. There will always be some tension between an ideological movement and the political party in which it exercises its principal influence. But that tension has lessened as conservatives have become part of the party establishment and the party establishment has moved right. The near parity between the major political parties, together with that rightward move, has raised the stakes. To put it more concretely: Making sure that a moderate Republican beats a Democrat in a House district in Georgia matters more to conservatives now than it would have in 1976.

If Republicans can make gains in ways that either conform with or do not violate conservative tenets, conservatives have every reason to cheer them on. When Democrats tried to change the election rules to their benefit in mid-count in Florida, conservatives could oppose them in good faith. They could root for the Texas Republicans this year as they attempted to redraw the congressional boundaries to their benefit. Liberal journalists claimed that the Republicans were violating some sacred principle by redistricting after a court had already drawn the map for this decade. But this "principle" was tailor-made for liberal advantage, and conservatives (George Will excepted) rightly ignored the wailing.

Conservative partisanship becomes problematic when it is at the expense of actual conservative principle. The very tightness of the alliance between conservative opinion elites and the Republican party makes the temptation for the former to regard themselves as an adjunct of the latter more powerful--and more important to resist. And while conservatives have not been corrupted to the point of betraying their principles, there are some troubling signs that they are getting caught up in a kind of team spirit that subtly undermines those principles. Their behavior in three recent controversies suggests that there are reasons for worry.

THE ACCOUNTING SCANDALS 

When Enron started making front-page headlines in 2002, the story was widely regarded as an indictment of deregulation and laissez faire--and of the Republican party, which was associated with those ideas and which had ties to the corporation. There were any number of responses that a conservative might have had to the situation. For purposes of simplification, however, let us boil them down to three.

Conservatives could have chosen to make some version of Case One: "Business scandals often arise in the late stages of economic booms. When they are exposed, lenders become more cautious; the market corrects itself. Where scandals involve law-breaking, the perpetrators should be punished. There may be ways to improve public policy as well. But the mere existence of scandals does not demonstrate that new regulations are appropriate. Any such regulations may very well cost more than they are worth, and the specific regulations being discussed are bad ideas."

Case Two would have been something like the following: "The scandals show some real problems in corporate governance that should be addressed by an intelligent, rather than spastic, application of new regulations. Some of the regulations being discussed would be worthwhile, some of them not."

Here's what Case Three would have looked like: "The misbehavior occurred mostly during the Clinton years, and it is evidence of the moral decay that Clinton promoted. The Democrats repeatedly failed to impose controls over executive stock options and to crack down on accounting fraud. There is no evidence that the Republicans were unduly influenced by Enron in setting public policy. President Bush is working on a reform bill that will prevent these abuses from recurring."

Very few people spoke up for the first alternative, which is the one I myself favored. A conservative with a less free-market bent could argue in good faith for the second one, and some did. But the dominant note sounded by conservatives was the third alternative, which was, unsurprisingly, also the one favored by the Bush administration. There were elements of truth to that response. The Republicans really had not turned over energy policy to Enron, and conservatives were right to say so. The fault of the conservative message was that it defended the Bush administration without seriously engaging the corporate-governance issues and, indeed, tacitly conceded those issues to the Left.

Conservatives did not, for the most part, argue for a free-market policy response to the scandals--or for any other response. Nor did they do anything to counter the Republicans' political panic regarding the scandals. In previous instances where the Democrats, the media, and the polls were demanding government action in response to some alleged crisis, conservatives explained that there was, in fact, no need for Republicans to "do something" about it to win the next election. Such a case would have been easy to make in the summer of 2002, and looks easier in retrospect.

With a very few exceptions, the think tanks were silent. Only a handful of right-leaning journalists swam against the tide. This conservative disengagement was not the only reason that Congress quickly passed the Sarbanes-Oxley bill to regulate accounting and thus "restore confidence in the markets." But it was a contributing factor. The bill did nothing to get the markets rising again; that came several months later, perhaps as a result of Bush's 2003 tax cuts. But the regulations are still on the books, and conservatives are only now beginning to realize how much they will cost.

Conservatives chose to defend the Republicans rather than free markets or even rational regulation. The result was that the Republicans did fine, but free markets took a beating.

THE WAR

The vast majority of conservatives--talk-show hosts, writers, activists, and rank-and-file voters alike--supported the decision to use force to topple the Iraqi regime. I was, and am, one of those conservatives. I think the war was justified both based on what we had reason to believe at the time it began, and based on what we believe now. Absent the war, the sanctions on Iraq would have become still weaker, and the regime would have been able, and willing, to make a menace of itself. There was also a strategic upside: the chance, however remote it may look at present, to create a relatively free society in the Middle East and thus to transform the geopolitics of the region.

Nonetheless, it has been hard not to wince at some of the bombast emanating from the pro-war Right. A case in point was the labeling, by some right-leaning commentators, of opponents of administration policy as "objectively pro-Saddam." The phrase is Stalinist in derivation: Social democrats and others were called "objectively fascist" because they resisted the Communists. Later, the phrase was used by non-Communists in ironic evocation of the Stalinists. In the last two years, however, the irony has been taken back out from the phrase. No doubt in some cases the label fit: A few commentators and activists were probably hoping for a Saddam victory. But as a blanket indictment of opponents of the war, it is a smear--unless, that is, it is fair to describe people as "objectively pro-" every dictator they do not wish to use American military force to oust.

Other conservative tropes, while not wrong in themselves, quickly reached a point of excess. The France-bashing was good clean fun, and it served a purpose. Some Americans had taken the strange position that our military action would have to be blessed by the United Nations, and therefore France, to be morally legitimate. The attacks on France helped to counter that idea. Some conservatives went on to suggest that France was showing a culpable ingratitude for our sacrifices in World War II. Strictly speaking, the claim made little sense: Surely France is not forever obligated to align with American policy because we liberated it to make its own decisions. On the other hand, the observation was a useful corrective to the idea that America is a selfish power or a force for evil in the world.

The worst thing about the moral critique of France, however, was its inattention to strategic considerations, which made it self-defeating. Conservatives have been so eager to blast Jacques Chirac for not getting behind Bush that we have largely failed to think through how French and American interests diverge, particularly with regard to the European Union, and how to respond to that divergence. Our slogan might as well be: Don't get even, get mad.

When the war ended, conservative commentators were confronted with the challenge of grappling with the failure to find weapons of mass destruction. Most of them ducked it. They made various inventive explanations for why they had not been found, why small bits of evidence of their existence closed the case entirely, and why the weapons did not matter that much after all. Saddam had destroyed the weapons as he went down to defeat; the weapons had been moved to Syria; the case for war never was primarily about the weapons.

In part, this conservative performance on the war was a response to the ugliness and folly of the war's domestic opponents. These opponents often claimed that the war was motivated by America's thirst for oil or President Bush's desire to avenge his father, and that the failure to find the weapons proved that the president had been lying. The blogosphere encouraged a hyperkinetic style in conservative commentary, as in political commentary generally. Conservatives have felt compelled to respond to the latest idiotic calumny of the administration on some left-wing website.

But scoring debaters' points is not a substitute for serious thought. It was true, for example, that some of the claims about the post-war looting of Baghdad were overblown, as conservatives rightly pointed out. But there was actual looting, and it may have undermined America's project in Iraq. When Defense Secretary Donald Rumsfeld suggested that the looting was a manifestation of freedom, conservatives should have been appalled. If any were, they kept their feelings private.

JUDGES

Getting President Bush's judicial nominees confirmed is a top priority of conservatives, as it should be. In their zeal to achieve this goal, however, conservatives have embraced just about any argument that the Republicans have made--even when these arguments have had little merit and would set back the conservative cause on judicial issues.

The current Republican/conservative line on judges runs as follows: The president deserves a fair amount of deference from senators when it comes to judicial appointments. The Senate's role should be confined to weeding out people who are unqualified--with qualifications being understood in terms of intelligence, professional ratings, and the like--and who are, perhaps, far out of the mainstream in their legal views. Senators should not take a nominee's "ideology" into account. That would "politicize" the judiciary, which is a no-no. Senators may not ask nominees how they would rule on cases of a particular type (e.g., those involving abortion). Filibusters of judicial nominees are a terrible distortion of the confirmation process.

All of these views are presented as though they were commanded by the Constitution or, at least, recommended by the Founders. But there is very little evidence that the Founders believed anything close to these views (or, for that matter, that they had any well-developed views about how to treat a judiciary as powerful as ours has become). It's hard to imagine a good argument for them.

If "ideology" refers to policy convictions rather than jurisprudential ones, then the Republicans are right to say that it should not be considered during the confirmation process. It should be possible for a nominee to be confirmed even if he believes the New Deal was socialist, or that gay marriage is a good idea, or that abortion should be illegal, or that abortion should be legal--so long as he is prepared to acknowledge that the law he is interpreting may point in a direction opposite from his policy views. Senate Democrats do appear to be using policy tests of this sort, and Republicans are right to object to it. But Republicans also object when such Democrats as Sen. Charles Schumer argue that nominees can be rejected on the basis of their legal views.

If the shoe were on the other foot, conservatives would have no difficulty in seeing that Senator Schumer is right--on that point at least. If a liberal judicial nominee came forward who thought that it was within the judicial function to order gay marriage, to raise taxes, and to impose racial preferences, conservatives would object. They would ask that nominee questions designed to learn the scope of the power that he would claim for himself. If they could block that nominee, they would--by filibuster if necessary. And they would be right to do so.

Where Schumer and his colleagues go wrong (or rather, among the places they go wrong) is not in evaluating nominees on the basis of their legal views, but in the substance of their evaluation. They want, for example, to block nominees who think Roe v. Wade was mistaken and should be overruled. They are wrong because the Constitution does not, in truth, require that abortion be legal. They want judges to impose a policy that they favor, which they claim is in the Constitution, but which is not really there. If they were right about the Constitution, they would be right to demand what they demand from judges.

Most Republican officials would prefer to avoid arguing about what is in the Constitution and what isn't. Such an argument would require them to take on Roe, which is popular (or at least polls well). Conservative lawyers who would like to be judges, meanwhile, have an understandable interest in seeing the temperature of confirmation battles turned down. So both groups invoke procedural standards (e.g., filibusters are anti-democratic) that prescind from any particular constitutional judgments (e.g., Roe is bad law). But the procedural standards are ludicrous. The complaints about legislators' alleged "politicization of law" also distract conservatives' attention from what should be their real concern: the judicial usurpation of politics. When judges rule us, the fact that they rule us, and the way that they rule us, should be a political issue.

Republicans, and their conservative allies, have been willing to make these lame arguments to rescue even nominees whose jurisprudence is questionable. Janice Rogers Brown, one of Bush's nominees, has argued that there is properly "an extra-constitutional dimension to constitutional law." She has said that judges should be willing to invoke a "higher law" than the Constitution. She has said that judicial activism is not troubling per se; what matters is the "worldview" of the judicial activist. If a liberal nominee to the courts said similar things, conservatives would make quick work of her.

In none of the three areas I have discussed would it be accurate to say that conservatives have betrayed their principles. But they have come close, and their arguments have taken on a growing slackness. Conservatives have not consciously decided that their chief purpose in life is to serve as cheerleaders for the Republican party. If they ever do--or ever fall into acting that way without making the decision--they will have negated the reasons for their own existence.