Republicans’ Alienable Rights

WASHINGTON —  The many-splendored fiasco of the failed nominations of Judges Robert H. Bork and Douglas H. Ginsburg has cost Ronald Reagan more than his ideological overhaul of the U.S. Supreme Court. Indeed, the philosophic readjustment implicit in the White House’s decision to switch to a centrist nominee like Judge Anthony M. Kennedy could be just the beginning. U.S. conservatism may pay a broader political price, not least because some of its leaders are developing cartoon-like images as incompetent ideologists.

Let’s be blunt. Back in the 1960s, as this country’s rightward tide was beginning, who would have guessed that a conservative Republican President would nominate a pair of bearded ex-Ivy League law professors with fringe ideas to the U.S. Supreme Court? For conservative strategists to be dumb enough to believe the Ginsburg choice in particular would play in Peoria raises a central 1988 question: Can the conservative movement still find Peoria--or even Middle America--on the political map?

The trigger, of course, came with Reagan’s outrage over the Senate’s rejection of Bork, his original nominee for the Supreme Court seat vacated by Justice Lewis F. Powell Jr. Despite one or two ideological fringe positions that peek out from under Bork’s whiskers, he is a distinguished scholar. Even though some of his opponents stopped little short of calumny, a better-planned White House campaign might have won his confirmation.

Yet when the Senate moved to reject Bork, the angry President determined to propose someone the recalcitrant legislators would like even less; then he and Atty. Gen. Edwin Meese III succeeded in a way that presumably profiles what they must have seen in Bork. Consider what the two judges, Bork and Ginsburg, had in common: first, a tilt toward abstract, ideological conservatism as opposed to practicality or traditionalism (no pin-striped downtown lawyer need apply). Second, involvement with doctrines, not constituencies or communities.

And, in Ginsburg’s more extreme case, we can perceive a commitment to deregulation and anti-government philosophies going beyond conservatism to libertarianism. It’s this libertarianism that provides the critical nexus between free-market economics and the laissez-faire life style writ large in Ginsburg’s record of marijuana use and children who took their respective mothers’ names.

In political and constituency terms, the flawed logic of redoubling Bork with Ginsburg is mind-boggling. When Richard M. Nixon threw the Senate two straight unacceptable Supreme Court nominations back in 1969 and 1970, he had a plan. The liberal Democratic Senate rejected two successive conservative appeals court judges from Dixie, thereby fanning the flames of Southern regional outrage and playing at least a small role in helping the Republicans sweep the South in the 1972 elections.

By contrast, Bork, the ex-Yale professor whose principal fan club was right-wing intellectualdom, had no innate cultural appeal in Dixie. Polls found that even white Southern conservatives wound up opposing his confirmation by a narrow plurality. Sen. Howell T. Heflin (D-Ala.) spoke for many local businessmen and good ole boys when he said that people weren’t sure whether Bork was a conservative or some kind of reactionary weirdo.

No small part of this was the White House’s fault. In one of the most inept Supreme Court confirmation campaigns of modern times, the President and White House Chief of Staff Howard H. Baker Jr. allowed anti-Bork pressure groups like the National Assn. for the Advancement of Colored People, the AFL-CIO and the National Abortion Rights Action League to frame the debate over who Bork was and what he stood for. Since these were the same groups whose influence had stereotyped Walter F. Mondale’s landslide presidential defeat in 1984, their own controversial agendas could have been questioned. That would have kept the accusatory playing field more or less level, so Bork would not have been sliced up in a one-sided debate. But it never happened. And the conservatives who blame the White House for a fumble that has begun to shift the contours of American social-issue politics leftward have a legitimate complaint.

Nonetheless, the immediate result of right-wing arousal was to compound a gathering disaster. Meese, a rightist stalwart, took advantage of Baker’s deserved embarrassment about Bork to call for a hard-line follow-up nominee. No choice from the moderate-conservative “Business Establishment” wing of the GOP would do--however confirmable. Neither would a pragmatic Southerner from the ranks of pro-Reagan conservative Democrats and independents.

Instead, the President and Meese reached once more into the nether regions of the conservative movement populated by deregulation experts, gold-standard mavens and White House aides who wear Adam Smith ties to endless intellectual memorial services for dead Austrian economists. The result was selection of Ginsburg, an inexperienced junior federal appeals court judge whose only proved “conservatism” lay in permissive views on antitrust and deregulation--and whose soon-to-emerge libertarian life-style made Bork look like a Sioux City Rotarian.

If the helpless Bork’s fate ultimately became a matter of indifference to many mainstream Republicans and Southern conservatives, Ginsburg raised eyebrows from the beginning. This time, the misjudgment was not Baker’s. Meese and his henchmen made fools of themselves.

And of other conservatives, too. The President commands less and less political respect with each passing week. The GOP’s claim to better management ability than the Democrats has been undercut. “Conservative leaders” who jumped to praise Reagan for choosing hard-liner Ginsburg look like chumps. Even before the nomination clashes, the once-powerful New Right credos of the early 1980s were caught in an ebb tide. Bork-Ginsburg has hastened the process.

So it would be timely for the GOP in 1988 if the Administration could learn from this. To wit: The party cannot take its appointments and ideology from a fringe of “conservative movement” intellectuals, and this is true not just in judicial selection, but also in social-issue formulation and economic policy. Some of the people cheering Bork and Ginsburg are the same ones who’ve been saying that budget deficits don’t matter, run-amok mergers are good, the record trade deficit is a tribute to U.S. economic strength, airline deregulation has been a triumph and “middle-class welfare” programs should be whacked out of the budget.

There is widespread political unworldliness in the upper reaches of this Administration that goes beyond a couple of bungled Supreme Court nominations. Ginsburg, for example, is an apostle of the “Law and Economics Movement,” a crowd so crazed about free markets that one espoused a free market in babies to help would-be adoptive parents. And Ginsburg is not alone in dancing along this periphery of what can be called conservative economic extremism--the tendency to overdiscover life’s explanations in abstract economics via marginal tax rates or rigid cost-benefit approaches to government legislation. Other well-placed practitioners abound in the Administration.

For several years now, this trend has been an incipient disaster for the Republican Party. The economy’s posture on the brink of a 1929 analogy is the most obvious worrisome sign. But in a larger sense, it’s a mistake to give too much power to ideologues who deal in abstractions instead of the day-to-day reality of constituencies, power-brokers and breadwinners. That’s how you get out-of-touch policies and unconfirmable nominees. It’s also how you lose elections.

The ultimate irony is how politics has come full cycle since the 1960s, when liberalism had been so long in power that its ideas had become distant, abstract and remote. Now, to some extent, it’s the conservatives who champion what former Alabama Gov. George Wallace two decades ago called “pointed heads” and “professors who can’t even park their bicycles straight.” The extent that the Bork and Ginsburg foul-ups are symptomatic of this transformation, rather than garden-variety political ineptitude, is critical. The Ginsburg affair, in particular, suggests American conservatism is losing not only its good-management reputation but its 20-year communion with Middle America. If the White House can’t begin to find Peoria on the political map, the Republican Party may not be able to win the 1988 presidential election--or deserve to.