Conservatives Without Conscience (19 page)

As the federal judiciary becomes a legal phalanx of conservative judges, and as Congress becomes increasingly conservative, it is worth pondering what would happen if a liberal or progressive president won the White House in 2008, and refused to enforce a Supreme Court ruling. Hypothetically, say the ruling required prayer in all public proceedings or the posting of the Ten Commandments in all federal buildings. Say that liberal or progressive president claimed, “I have taken an oath that is as valid as that taken by members of the Court. The Court’s ruling violates the United States Constitution. The Court has no constitutional authority to require enforcement of such a ruling; therefore, I order the Justice Department and the federal marshals not to enforce it.” Needless to say, for a president to do so would be an extreme measure. Yet this is precisely what Pat Robertson and other Christian conservatives believe a conservative president should do, and that he should act as he sees the law, not as the high Court has seen it.
⁸⁰
This, of course, is the way authoritarians think.

If this scenario were just one of Pat Robertson’s more outrageous demands, it could be safely ignored. In fact, though, such thinking is widespread among Christian and social conservatives. For example, in 1997, Chuck Colson wrote in
Christianity Today
about his displeasure with the Supreme Court’s ruling in
Boerne v. Flores,
which held that the Religious Freedom Restoration Act, passed by Congress to address the standard under which religious practices could be curtailed by government, was unconstitutional. Colson raised the question of who determines what the Constitution means: the Supreme Court, the Congress, or the president? Colson claimed that “contrary to what most Americans think, the Constitution does not give the Supreme Court final say on constitutional questions.” He further asserted that in 1803, in
Marbury v. Madison,
“the Court assumed the power of judicial review,” yet “three presidents have resisted Court orders: Thomas Jefferson refused to execute the Alien Imposition Act; [Andrew] Jackson spurned a Court order in a banking case; [and] Lincoln rejected the Dred Scott decision.”
⁸¹
Colson, like Robertson and others on the
religious right, is seeking, in effect, to nullify Supreme Court decisions of which he does not approve. Because such arguments are being made increasingly in lengthy law journal articles, which are later cited by conservative judges, it is worth taking a look at conservative scholarship in this area, and Colson is considered a scholar by his contemporaries.
⁸²

First, contrary to Colson’s suggestion, the practice that is now called “judicial review” (the ability of federal courts to overturn acts of Congress) did not start with
Marbury,
but was already well established by 1803 and the
Marbury
ruling. In fact, the Court noted in
Marbury
that “[t]he question, whether an act, repugnant to the constitution, can become the law of the land” was to be resolved by relying on “long and well established” principles.
⁸³
Even before the Constitutional Convention, high state courts had held legislative acts unconstitutional in several states, and references in the constitutional debates suggest that the delegates to the convention assumed federal courts would have such review authority. Members of the First Congress certainly understood that Supreme Court justices would decide constitutional questions. For example, Abraham Baldwin of Georgia stated during a debate of the First Congress, when speaking of the judiciary, that “it is their province to decide upon our laws; and if they find them unconstitutional, they will not hesitate to declare it so.” During the same debate, Peter Sylvester of New York added, “It is certain that the Judiciary will be better able to decide the question of constitutionality in this way than any other. If we are wrong, that can correct our error.”
⁸⁴
Also long before
Marbury,
the newly created federal circuit courts, with Supreme Court justices presiding, reviewed the constitutionality of acts of federal officials and scrutinized federal statutes on no less than twenty occasions. Justice James Wilson, appointed by President George Washington and one of the more scholarly of the first justices, prepared a series of now famous lectures in 1790 and 1791 in which he explained that the courts must decide constitutional questions as a check on the legislature. In 1794 the Supreme Court
declared a law passed by Congress in 1792, the Pension Act, was unconstitutional.
⁸⁵
In short, the Court has had this power from the outset, and contrary to Colson’s claim, it did not suddenly “assume” it in 1803.

Colson’s historical examples, suggesting that presidents and Congress need not be bound by Supreme Court rulings, are red herrings. His claim that Thomas Jefferson did not execute “the Alien Imposition Act” is incorrect, for there is no such law. If Colson is referring to the infamous Alien and Sedition Act of 1798, it had nothing to do with a court order, and the example is therefore very misleading. When Jefferson was vice president, President John Adams asked him for his legal opinion of the sedition act (which made seditious libel a crime); Jefferson replied that he believed it to be unconstitutional. Nonetheless, Federalist judges upheld the law, and John Adams prosecuted under it—to his everlasting historical shame. When Jefferson became president he pardoned those who had been convicted. Because the act expired on March 3, 1801, and Jefferson was not inaugurated until March 4, 1801, he could not execute it anyway, since the law no longer existed.

Colson’s claim that President Andrew Jackson “spurned a Court order in a banking case” is also misleading. Presumably, Colson is referring to Jackson’s veto in 1832 of a bill to recharter the Bank of the United States. In taking this action, Jackson relied on the constitutional argument that Chief Justice John Marshall had rejected in
McCulloch v. Maryland
two years earlier, when the court upheld the constitutionality of the bank. President Jackson’s veto, however, was not in defiance of a court order, for the Supreme Court had not said it was unconstitutional to not have a bank, so Jackson was under no obligation to recharter a national bank.
⁸⁶

Finally, in regard to his claim that Lincoln rejected the
Dred Scott
decision: Colson added in his commentary that “Lincoln even asked Congress to overrule the Court—which it did; passing a law that reversed
Dred Scott.
” That is a stunning summation, not to mention dis
tortion, of history. What actually occurred was that the Supreme Court issued its abominable opinion in
Dred Scott v. Sanford
in 1857, asserting that slaves were neither citizens nor persons under the Constitution; that Congress could not prohibit slavery in the territories; and that the Declaration of Independence’s statement that “all men are created equal” referred only to white men. In 1858, during the famous Lincoln-Douglas debates when Lincoln was running for the Senate,
Dred Scott
was discussed. Lincoln, who later lost the race, argued that the Court had misread both the Constitution and the Declaration of Independence. He believed
Dred Scott
to be a political ruling, and rejected its politics, arguing, “We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.” Seeking reversal is not defiance of the law. Not until the outbreak of the Civil War did Lincoln actually defy the Supreme Court, when he suspended the writ of habeas corpus.
*
As for the
Dred Scott
decision, contrary to Colson’s inference, it would take more than a law passed by Congress to overturn the decision. In fact, it required two amendments to the Constitution: the Thirteenth and Fourteenth. Lincoln, as it happened, asked for neither, although some historians believe he encouraged Senator John B. Henderson to introduce the joint congressional resolution to abolish slavery that eventually became the Thirteenth Amendment.
⁸⁷
The Fourteenth Amendment was not proposed until June 13, 1866, over a year after Lincoln had been assassinated.

Colson’s baseless arguments are unfortunately typical of those that authoritarian conservatives insist on making, using facts that are irrelevant or misleading, if not demonstrably wrong. The self-righteousness of authoritarians, particularly of Double Highs like Colson and Pat Robertson, has become so pronounced that at times it seems as if they believe themselves actually to be speaking ex cathedra. Their contention that the president of the United States is not bound by rulings of the Supreme Court, or, for that matter, by the laws of Congress, when these rulings or laws relate to the functions of the presidency has gained increasing currency with authoritarian conservatives, both leaders and followers. As I will show in the close of the following chapter, this claim is truly frightening in its implications.

W
HILE AUTHORITARIAN CONSERVATISM
was growing in force in Washington for a decade before Bush and Cheney arrived at the White House, their administration has taken it to its highest and most dangerous level in American history. It is doubtful they could have accomplished this had authoritarian conservatism not already taken hold on Capitol Hill, but it might have ended in the legislative branch had this Republican presidency not given it a new legitimacy. Meanwhile, the federal judiciary has largely acceded to the status quo, for when Republican judges and justices are comfortable with those leading the charge, they embrace the fiction that “political questions” should rightfully fall to the political branches—as if they themselves were not political. The changes in policies and procedures that have taken place because of authoritarianism are quite dramatic. I entered politics at a time when there was good reason to worry whether the country was tilting too far left; but as I have grown older I am finding I have good reason to be anxious about the United States government’s tilting too far to the right. It has always struck me that the country runs best when it stays close to the center.

Congressional conservatives first displayed their authoritarian colors
when they reorganized the U.S. House of Representatives in 1995 to make it a monocratic operation. The House is being “run like a plantation,” Senator Hillary Clinton recently observed, explaining that “nobody with a contrary point of view has had a chance to present legislation, to make an argument.”
¹
Authoritarians, under the leadership of Newt Gingrich and Tom DeLay, have successfully concluded a conservative revolution on the House side of Capitol Hill. With the possible exception of the hosts of right-wing talk radio, it is difficult to think of anyone who has done more to poison national politics—as part of that process—than Gingrich and DeLay. Both men are textbook examples of authoritarians, and their behavior and its consequences represent conservative authoritarianism at its most ruthlessly efficient. While Gingrich and DeLay are gone, the house they built remains.

Gingrich’s Authoritarian House

Newt Gingrich’s life story is well known. After earning his doctorate in modern European history from Tulane University, Gingrich—who had grown up on military bases around the world as the adopted son of a career soldier—began an undistinguished career teaching history and environmental studies at West Georgia College. His years as an academic were interrupted by unsuccessful bids for Congress in 1974 and 1976. His first wife, Jackie, raised their two daughters while putting her husband through graduate school. During his third run for Congress in 1978, Jackie traveled hundreds of miles campaigning for Gingrich; at his request, when it became an issue during the campaign, she announced that, unlike her husband’s opponent, they would keep their family together if he won by moving to Washington rather than staying behind in Georgia. Members of Gingrich’s staff knew what Jackie did not, and were betting one another on how long the marriage would last. Eighteen months after winning his seat in Congress, the man who had campaigned on keeping his family united
asked for a divorce. Jackie, who was in the hospital recovering from a second cancer operation, was confronted by her husband carrying a yellow legal pad filled with a list of his wishes regarding how the divorce should be handled. He wanted her to sign it, then and there, even though she was still groggy from surgery. When Gingrich abandoned his family he left them near destitute, and it was Jackie’s friends at her church who raised money to help her and her daughters survive.

Gingrich arrived in Washington just as Phyllis Schlafly’s STOP ERA fight was revealing the power of social conservatives, for she had all but defeated the proposed amendment by this time. Paul Weyrich was simultaneously organizing Christian conservatives through the Moral Majority, and anyone as politically astute as Gingrich recognized the potential of the Christian right. In 1974 Republicans had experienced a post-Watergate wipeout in the Congressional elections, and in 1976 Carter’s victory had cost Gingrich his race. But by 1978 Republicans were starting to regain some strength in Congress with the help of Schlafly’s volunteers, who assisted in countless congressional contests. Abortion proved a successful wedge issue in 1978, separating liberal Democrats from conservative Democrats in the same way the issue of “family values” had in Gingrich’s own election. In addition, conservatives had figured out how to get around post-Watergate election reform laws by establishing political action committees (PACs). By the time Gingrich arrived in the House, Republicans had gained thirty-three seats, narrowing the margin to 292 Democrats versus 277 Republicans. Gingrich, a person who sees himself as a visionary with endless ideas, began thinking about how Republicans could win control of the House, and how he could make his own mark on history. David Maraniss and Michael Weisskopf write that “during his freshman term in Congress, Gingrich had pestered the National Republican Congressional Committee (NRCC) brass into letting him run their long-range planning committee.” Once given the job he “visited the NRCC offices day and night, proposing one grand idea af
ter another…filing cabinets loaded down with ‘Newt’s Ideas.’ One lonely cabinet in the corner was labeled ‘Newt’s Good Ideas.’”
²

People who knew Gingrich early in his political career have described him—and because he is a man who still wants to be president of the United States such assessments remain relevant—in less than glowing terms. David Osborne spoke with many of them when he was preparing his telling profile for
Mother Jones
magazine, and he was given information descriptive of an authoritarian leader. Osborne reported that Gingrich was dominating, opposed to equality, desirous of personal power, and amoral; he can be a bully, hedonistic, exploitive, manipulative, a cheater, prejudiced toward women, and mean-spirited, and he uses religion for political purposes; he also wants others to submit to his authority and is aggressive on behalf of authority. A number of Gingrich observers described his nature:

• Lew Howell (a former press secretary): “Gingrich has a tendency to chew people up and spit them out, and when he doesn’t need you anymore he throws you away. Very candidly, I don’t think Newt Gingrich has many principles, except for what’s best for him.”
  
• Chip Kahn (who managed Gingrich’s first two campaigns): “Ambitious bastard.”
  
• Mary Kahn (a reporter who covered Gingrich before marrying Chip): “Newt uses people and then discards them as useless. He’s like a leech. He really is a man with no conscience. He just doesn’t seem to care who he hurts or why.”
  
• L. H. Carter (once a close friend and adviser) on returning to Georgia after Newt was elected: “[H]e turned in my car and looked at me and he said, ‘Fuck you guys. I don’t need you anymore.’” Carter added, “The important thing you have to understand about Newt Gingrich is that he is amoral. There isn’t any right or wrong, there isn’t any conservative or liberal. There’s only what will work best for Newt Gingrich. He’s probably one of the most dangerous people for the future of this country that you can possibly imagine. He’s Richard Nixon, glib.”
  ³
  

Gingrich eventually organized a small group of like-minded House Republicans, which included a fellow he did not particularly like, Texas congressman Tom DeLay. Gingrich’s antipathy for DeLay was understandable, because DeLay is another social dominator authoritarian, and when social dominators are not convinced they can use each other, it is like trying to force the negative ends of magnets together. DeLay was not buying into Gingrich’s strategy, which historian Donald Critchlow described as an effort to “undermin[e] the established order in the House.”
⁴
In 1984 Gingrich began lining up Republicans to give speeches at night on the House floor when the House was no longer in session, but C-Span cameras were still on. Members of Congress are permitted to say anything about anyone other than fellow members of Congress (they try to protect their own) with no fear of being sued for defamation or invasion of privacy, or of being otherwise held accountable, because such speech is constitutionally privileged. Newt and company took full advantage of that privilege. For example, in one speech he accused Democrats of “being blind to communism,” and he announced he was going to file charges against them for writing a letter to communist leader Daniel Ortega of Nicaragua. It was never clear what those charges might be, but that hardly mattered: This was all a show for a growing C-Span audience who did not realize that they were not watching live sessions of the House. When Speaker Tip O’Neill learned what was going on, he ordered C-Span to start panning its cameras across the empty chamber periodically, so the audience would realize these were out-of-session gatherings. A few days later O’Neill, who thought it critical that civility be maintained in politics, scolded Gingrich from the Speaker’s chair high above the floor at the front of the chamber, shaking his finger, “You deliberately stood in that well before an empty House and challenged these people, and challenged their patriotism, and it’s the lowest thing that I’ve ever seen in my thirty-two years in Congress.”
⁵

But things would only get worse. In 1987, after O’Neill retired, Gingrich began throwing bombs at the new Democratic Speaker of
the House, Jim Wright.
*
“Gingrich’s strategy called for not only questioning the ethics of individual Democrats but also for denigrating Congress as an institution,” Critchlow wrote. For example, “[H]e pursued a scandal in which many members of the House, including Republicans, had kept large overdrafts at the House bank.”
⁶
The House banking affair was the kind of scandal the American people understood, and it tarnished the House badly, because it involved both Republicans and Democrats. (None of the members was stealing money, however. They had merely been slow to pay back the bank, and had therefore been effectively receiving interest-free loans. The practice was widespread, although it appears Republicans may have warned one another before the scandal blew up so as few of them as possible would be implicated.)

Gingrich, while claiming to be “a person of faith more than I go to church,” in typical authoritarian fashion sought to define the scandals he created by portraying Republicans as godly and Democrats as antireligious liberals. And he knew how to do it. “Gingrich had come to believe that the politics of
perception
was everything,” historian Dan Carter explained.
**
“It did not matter what really happened,” only how it was defined for others to perceive. Accordingly, Gingrich distributed to fellow Republicans a list of key words to be used when describing Democrats: “
sick, traitors, corrupt, bizarre, cheat, steal, devour,
self-serving,
and
criminal rights.
”
⁷
New Yorker
journalist David Remnick concluded, said Carter, that Gingrich was using “good” and “evil” rhetoric to make Republican challenges to Democrats’ domestic policy “as severe and confrontational as the struggle with Soviet Communism at the height of the Cold War.”
⁸
Gingrich would resign from the House in 1998 under a cloud. From the sidelines, and not long before Gingrich departed, Paul Weyrich had observed admiringly, “Newt Gingrich is the first conservative I have ever known who knows how to use power.”
⁹
In fact, there was someone else Weyrich would come to know who used power even more aggressively and ruthlessly than Gingrich: Tom DeLay.

Tom DeLay’s Tyranny of the Bare Majority

Tom DeLay’s Double High authoritarian personality offers an almost textbook example of the four defining elements of a social dominator: the tendency to dominate; opposition to equality; desire for personal power; and amorality. His domination is apparent in his bare-knuckle Machiavellian management of the House. “DeLay has never been subtle about his uses of the power of Love and Fear,”
Newsweek
reported. “In his majority whip’s office on the Hill, he kept marble tablets of the Ten Commandments and a half-dozen bullwhips. Many politicians are conflict-adverse and avoid confrontation at all cost. Not DeLay.” He was not nicknamed “the Hammer,” “the Exterminator” (he once was in the pest control business), and the “Meanest Man in Congress” because of his compliant charm. DeLay, in a pattern followed by many Double High authoritarians, became a born-again Christian in 1984, when he was first elected to Congress.
¹⁰
He also quit drinking and became an outspoken moralist. He famously blamed high school
shootings, like those at Columbine, on the availability of birth control for teens and the teaching of evolution. DeLay’s opposition to equality is less conspicuous, but it is certainly evident in the Texas redistricting plan he brokered. Not only did Republicans benefit under DeLay’s plan at the expense of Democrats, but according to briefs filed with the Supreme Court, the plan was a disaster for blacks and Hispanics.
¹¹
DeLay’s drive to climb the House GOP leadership ladder is evidence of his desire for power. His own colleagues have described him as amoral. “If it wasn’t illegal to do it, even if it was clearly wrong and unethical, [he did it]. And in some cases if it was illegal, I think [he] still did it. That’s my view,” said Representative Chris Shays (R-CT).
¹²
DeLay’s Double High authoritarianism illustrates a host of the negative traits found in these extraordinary people.

Tom DeLay had not supported Gingrich’s climb to the House GOP leadership ranks. In 1984, when Gingrich was lobbying for the job of minority leader, DeLay had only just arrived in Washington. DeLay’s biographers say that he avoided Gingrich’s “back bench bomb throwing” not because he was unwilling to adopt those methods, but because he had been warned off by others who doubted Gingrich’s tactics would prevail. “DeLay goes with winners,” his biographers wrote. “If he had been born in the Soviet Union and elected to the Duma in 1984, he would be a Marxist,” they reported.
¹³
But in this case DeLay made a bad call, because Gingrich became minority leader in a very close vote (87 to 85), and he would not forget that DeLay had not backed him.