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The Fever

Whatever else is at stake in President Bush’s nomination of the successor to Supreme Court Justice Sandra Day O’Connor, the character of American conservatism certainly is. The sober truth is that, barring a scandal or an act of Intelligent Design, the president will get the judge he wishes: He owns the executive and legislative branches of government, and the Democrats have only the under-inflamed leadership of Harry Reid and the over-inflamed advertisements of MoveOn upon which to rely. (The spots display ancient images of Robert Bork, as if it is shrewd to gamble on the historical memory of the average American. Ask many Americans who Bork is and they will say an Icelandic pop singer.) The power belongs to the Republicans. But with power comes the inebriation of it, and the misuse of it, and the sanctification of it—and the Republicans under Bush are not displaying any special immunity to these errors. The question, Who will succeed O’Connor? is therefore the same question as, What is the condition of American conservatism? And the conservative frenzy that followed O’Connor’s resignation is a troubling sign—troubling for liberals, obviously, but troubling also for the many conservatives who have not yet taken leave of their senses.

It is well-known that Bush is not a creature of the big tent. He reveres, strategically but also psychologically, his base. But there is little peace in his small tent. The many elements of contemporary conservatism no longer comport so easily with one another, except in their loathing of liberalism. The president’s own philosophy is increasingly inconsistent and situationist: Whatever one thinks about the war in Iraq, it was not the Burkean thing to do; whatever one thinks about the pharaonic deficit, it is not what Ronald Reagan had in mind; whatever one thinks about gay marriage, forbidding it is not the libertarian way; and so on. It does not help that the president’s supporters like to call him a revolutionary, which was supposed to have become forever a term of disgrace in the world after totalitarianism. But the president enjoys the idea of himself as a radical, and he has himself to blame if he is finding more and more radicalism on the right. The wink at extremism may have been useful electorally, but the election is over. And, with sanctimonious stunts like flying to Washington in the middle of the night to intervene in Terri Schiavo’s destiny, Bush feeds the beast; and the beast is panicked and ravenous.

The immediate right-wing assault on Alberto Gonzales was a measure of the mood in the Bush base. For these people, it is not enough that they control two branches of the federal government. They want them all. There remains the problem of the third branch, and its outrageous refusal to conform to their doctrines and their superstitions. Why should Truth have time for the separation of powers? These conservatives, many of them militant Christians, harbor a particular hatred for the judiciary, about which they often speak with rhetorical violence. The stronger they get, the weaker they feel. Spiritually, they are always victims. Never mind that almost every significant judicial victory for liberalism is steadily and skillfully turned into a significant political victory for conservatism. Consider only the Supreme Court’s recent ruling in Kelo v. New London, the takings case in Connecticut. From the wild discussion of the case in the press, you would think that the Supreme Court had restored the Courts of Star Chamber and abolished private property in America. In fact, the ruling was a reasonable interpretation of the Fifth Amendment that is supported by a tradition of jurisprudence. But “eminent domain” has now become a potent right-wing curse, like “gun control” and “choice.” Laws are being drafted in various legislatures to put an end to this new affront to liberty. The fever runs higher and higher.

So, when Bush chooses among candidates for the Supreme Court, he will be choosing among conservatisms. It will be a moment of right-wing reckoning. For all his friends and all his loyalties do not add up. Bush must endorse the fever or repudiate it. If liberals are lucky, conservatives will continue to denounce Gonzales and provoke the president into nominating him. He is a mediocre figure who authored some disturbing extenuations of the administration’s twisted ideas about torture and war, but he is not fevered. Whether or not Gonzales is Spanish for Souter, it is enough that it may be Spanish for O’Connor. She was no Brandeis, but, in this troubled age of perfect certainties, she looks increasingly like a heroine of reason, which, once upon a time, was the foundation of American freedom.

This article originally ran in the July 25, 2005 issue of the magazine.