Who could have written the story about a president who puts a failed horseshow umpire in charge of disaster management and loses a city Thomas Jefferson bought from Napoleon? Brownie has now gone home to spend more time with the family and await his medal of freedom; the attorney general with the morbid fear of large bronze breasts and small calico cats, who had distinguished himself by losing an election to a dead man, has been happily replaced by Counselor Torture Memo, but the veterinarian running the FDA is still on the job protecting the unborn from effective contraception and the already born makers of vioxx and the short-circuiting implantable defibrillator from effective regulation, and, of course, Rummy continues to fight the war he wanted with the army he has.
The level of unintelligence in our daily life outstrips intelligent design; but it’s not exactly random selection either. Call it rather—designed unintelligence, in other words, ideology. Not ideology in the bastardized sense deployed by Senators and good-hair news-casters to mean a set of consciously held beliefs—as in “The neocons are ideologically committed to American hegemony” or “the Democrats opposed the confirmation of John Bolton because they fear he is an ideologue”—but ideology in the old-fashioned, critical sense of a set of ideas that derives from the perspectives and interests of a particular group, and, through that group’s monopoly of the arenas of public speech, comes to be mistaken for the state of nature. As Rummy might put it, it’s not the ideology you know you have, nor the ideology you know you don’t have, but the ideology you don’t know you have. It is not, for example, that John Bolton prefers American hegemony to a system of international agreements, but the underlying and less examined assumptions that make that make the preference appear natural and inevitable to him. Ideology is the unexamined story through which our thoughts and actions are graced with motives.
Good stories are about decisions. Among the first decisions announced by the President after aides—using a compilation DVD of “Waters Gone Wild”—brought it to his attention that something was amiss in New Orleans: waive the environmental regulations on fuel blending and suspend the living wage rules for construction workers. Along with these two gestures of compassion designed to show that the administration had the crisis in hand, we were further reassured to learn that Halliburton and its ubiquitous subsidiaries would soon be reconstructing the oil platforms and piping installations in the Gulf (this time) of Mexico. The decisions in the story of the Bush administration may be chaotic in consequence, but the plot line is easy to see: “In every tragedy there is a silver lining. Leave no opportunity unexploited.” The theme that drives this plot is also easily grasped: the transfer of public money to private hands is the highest good.
The recent, dispiriting hearings of the Senate Judiciary Committee on the confirmation of John Roberts are a case in point. Ideology shifts the focus of thought from ends to means. This shift was, of course, precisely the end, or point, of the Republicans’ desire to limit substantive questions at Judge Roberts’ confirmation hearings. Shortly after Roberts’ nomination, a Washington Posteditorial outlined the career his as a hugely successful corporate lawyer and governmental advocate for corporate freedom from regulation, only to draw the astonishing conclusion that “Judge Roberts's law practice was not ideologically driven.” If the end of legal advocacy is, transparently, the financial benefit of the lawyer and his or her clients, John Roberts is a winner. John Roberts is not an ideologue, and so, as the Post editorial writers recently concluded, he should be confirmed. However, if the end of service on the Supreme Court is, say, justice, we are exiled from the sunny realms of positive success or failure into the hurly-burly of conflicting interests. Winning is easy to define and quantify, justice is not, because one person’s victory is another’s loss. “Who loses?” is precisely the question masked by the winners’ tale that is the reigning ideology.
Before we ask whether or not John Roberts will make a good justice, we have to think about what is just. If the senators had set out to determine not whether Judge Roberts is an ideologue, but rather the content of his ideology—that is, what ideas and values seem transparently true to him—they might have asked questions not so easily ducked as “matters that may come before the court.” For example, “Judge Roberts, if an ambitious young associate at a law firm were asked by a senior partner to 1) help find legal ways to suppress evidence that a corporate client was killing people and 2) ensure that the client could continue to kill people (in other words if the client were, say, Philip Morris), what should he or she do?”
To question the value of accumulating and protecting property as opposed to other social goods goes against our practice of jurisprudence, because law is (and probably should be) about procedures not values. Law is, ideally an attempt to replace decisions with procedures, to effect the consistent application of rules so as to minimize the ad hoc elements of decision, leaving it dispassionate, universal and predictable. There is much to be said for such a Kantian, liberal, enterprise of adjudication. But the contradictions, the winners and losers, still need to be addressed, if not by those who render judgment according to law, then by those who make law. Making law can never be about procedures, or principles. It needs to be about ends, about taking responsibility for bringing about one outcome rather than another. The Declaration of Independence says that governments are instituted to secure rights. Jefferson enumerates rights to “life, liberty, and the pursuit of happiness.” To silently subsume these three into the right to property, as though its primacy were transparently obvious, is an ideological evasion of choice and decision. The remedy is not to pretend that ideology can be replaced by a value-free procedure, but to understand that ideologies are perspectives, and that the losers’ perspective is a necessary supplement to that of the born winners whose voices are more easily heard. Judge Roberts’ confirmation hearing in the senate was precisely the venue in which a public discussion of what a just world might look like and how the laws might be adjusted to bring it about ought to have taken place. Unfortunately, the ideology enshrined and exemplified in an inability to recognize the service of Mammon as a choice not a necessity, and the ideology of incumbency, that makes reelection an end rather than a means, ruled that sort of discussion out of order.