Feature 10.17.2018 5 minutes

Recovering the Middle Ground

Face of lady justice or Iustitia – The Statue of Justice

First, focus fire on America's radical fifth column.

Claremont President Ryan Williams’ recent column has proven controversial enough that at least one respected commentator on the right, Jonah Goldberg, has taken issue with it. Goldberg feels Williams is justifying extreme political actions on the right because, “Williams says, the middle has collapsed, the parties are pulling farther apart.” Interestingly enough (I wager), the two men don’t disagree with the central point of contention, which is that the forces of true illiberalism on the left must be decisively defeated if America as we value it is to survive.

So then the real question in many respects is who is the enemy in this civil war? I don’t think it’s the rank and file Democratic voters who make up much of America. Whether it’s political correctness or due process, survey after survey shows sharp breaks among the general public with the radicalism of progressive activists and prominent figures in left-wing institutions that appear to be leading Democratic party leaders around by the nose.

Tribalism is a term that has been thrown around a lot recently to describe the state of the right, though in key respects I think more aptly describes the state of the left. Trump’s populism, for good and for ill, is more reflective of where Republican voters are than conservative intellectuals. Meanwhile, it seems that it’s increasingly blind partisanship—enabled by an incompetent media that frequently misrepresents Republican positions and statements in order to scare the left into holding the line—that is keeping the Democratic party coalition together.

To illustrate this, Williams astutely highlights the academic backdrop to the confirmation of Justice Kavanaugh, which has made intensely bitter confirmation fights inevitable. “The Left’s legal realism means that even in the exercise of their power—under a fixed or evolving standard—judges are just political operatives like anyone else,” he writes.

This is quite correct, and to illustrate why, let’s examine this in the context of Donald Trump’s extraordinary election as president. In May of 2016, Mark Tushnet, a Harvard Law professor who is one of the most widely cited legal academics, wrote a blog post. Tushnet embraces “critical legal studies,” or the idea that the law is just politics by another means. Well, in that blog post Tushnet, looking ahead to a Clinton presidency, outlined what liberals should do with the judiciary to advance their agenda.

Tushnet’s vision for more liberal control of the judiciary wasn’t pretty: “Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. … The culture wars are over; they lost, we won…. Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling…. Remember that doctrine is a way to empower our allies and weaken theirs,” and finally, “f—k Anthony Kennedy.”

Those who care about the judicial branch had many reasons to worry about the Democrats gaining political power. But Tushnet’s post in particular galvanized the Federalist Society and others, who felt the threat to constitutional law acutely enough that the conservative legal community seemed comparatively devoid of Never Trump sentiment.

Had Clinton won, it’s safe to say that voices such as Tushnet would have had outsize influence on her Supreme Court picks. (I would also note that Tushnet isn’t even the most troubling Harvard Law professor I can think of; the once estimable Larry Tribe’s twitter feed reveals that he is now completely deranged and unhealthily obsessed with politics.) Of course, Clinton did not win and Tushnet gave an interview to Vox post-Kavanaugh where he is now arguing the Supreme Court should be abolished altogether. You can attempt to parse Tushnet’s argument, but I don’t think I’m oversimplifying too much when I say it all boils down to the fact that Tushnet thinks the court should only exist to advance a political agenda to his liking.

Now, I don’t know about you, but even after the bitter Kavanaugh confirmation, I haven’t seen too many Democrats heading into the mid-term elections campaigning on abolishing the Supreme Court, because we all know voters would reject such an idea as extreme and un-American. And yet this is exactly the kind of ideology informing how the Democratic party will appoint judges.

At the same time, much has been made of the supposed radicalism of the Trump administration. And yet when it comes to matters of governance, even the most disagreeable fever dreams of, say, Steve Bannon simply don’t threaten an open assault on the Constitution the way that the tenured radicals at Harvard Law School do. To be clear, I have my issues with Bannon, but there’s a horrible disparity here when you consider that Bannon’s views are often unfairly caricatured and treated with contempt by the press, while Tushnet, who wants to abolish the Constitution as we know it because an election didn’t go his way, gets a reverential hearing of his ideas.

I don’t want to speak for Williams, but winning the “civil war” as he envisions it means going after the select group of poisonous ideologues, be they merely influential or actually wielding political or institutional power, and exposing the gulf between their radical ideas and the beliefs of the ordinary Americans whose ostensible support they depend on. In many respects this is less about civil war, than about rooting out a radical fifth column in America, such that ordinary Democrats can be empowered to seek more moderate leadership and those on the right will feel less directly threatened as a result.

The ultimate goal for a functioning body politic should be to find the middle ground and compromise where possible when exercising political or legal authority. I hope Williams agrees with this sentiment, and I think he does as he has stated a desire to resolve these conflicts through “passionate and spirited national argument as fellow citizens, rather than as enemies.”

Similarly, I would hope that Goldberg would acknowledge finding compromise and accepting disagreement in good faith is contingent on everyone in Washington operating within a shared understanding of certain inviolable Constitutional principles, or at the very least getting actual, broad-based democratic support for amending it, rather than using the judiciary to make it up as they go along. And I think Goldberg would agree that the threats to constitutional rule of law have rarely been greater.

But the trick to winning any war, ideological or otherwise, is knowing when to yield, when to attack, and where to aim your fire. I suspect that Williams and Goldberg are having an ultimately minor disagreement over tactics, and they very much agree that a war for the judiciary and the Constitution is worth fighting and winning.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

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