America’s closing society: a reply to Roger Scruton

The earlier contributions to this openDemocracy debate are:

Gara LaMarche, “The crisis of democracy in America” (30 June 2005)

Roger Scruton, “The United States and the open society” (12 July 2005)

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I appreciate that Roger Scruton has paid me the compliment of reading my openDemocracy essay “The crisis of democracy in America” carefully, criticising much of it thoughtfully. In this short response I concentrate on just three of the issues between us: the source of the threat to open society in the United States, the nature of the threat, and the notion of “neo-McCarthyism”.

Patronage and power

First, I did not argue that open society had completely broken down in the United States, nor that the abuses are incorrigible; nor do I believe it has or they are. But I do believe key institutions of open society are in danger in the United States, and they are in danger at the moment principally from, as Scruton puts it, “right-wing machinations”.

That is because the right-wing holds considerable state and private power in the United States and – as Tom DeLay, Republican leader in the House of Representatives, demonstrates most vividly – thirsts for more, even at the expense of time-honoured rules about, for example, when redistricting takes place or how long Congressional debate can proceed.

The left is not immune in principle to such excesses or abuses of power; it just has lacked the capability or inclination to pursue them for much of the recent past. A glance at the judicial appointments record of Bill Clinton illustrates this.

When Clinton was president, did he use his two supreme court appointments to give some ballast to the left on the court – voiceless since the days of William J Brennan, Thurgood Marshall and William O Douglas – to counter hardline constitutional “originalists” like Antonin Scalia and Clarence Thomas? No. He appointed the centrists Ruth Bader Ginsburg and Stephen G Breyer.

Did Clinton pack the lower courts with young left-wing ideologues determined to impose their will through lifetime appointments, as Bush has by raiding the Federalist Society’s membership rolls to stock the department of justice and district and appellate courts? No. He appointed safe “consensus” candidates, and still the Republicans in Congress did everything they could to keep the vacancies open until their return to power.

I don’t accept as accurate Scruton’s description of efforts to block the appointments of Robert Bork and Clarence Thomas to the supreme court as “politically-motivated” “character assassination”.

Robert Bork is said to be a fine person by many who know him, including former judicial colleagues of sharply differing philosophy. It is a myth that his character was attacked, and you can search the voluminous record of the hearings and the press around his 1987 nomination and find nothing approaching a personal attack. The battle over Bork was fought over judicial philosophy, over the ideas of a man who made it very clear in many years of writings, opinions and speeches, that he wanted to take the court and the country back to the jurisprudence of the pre-New Deal era.

Bork’s radical writings in the years since – questioning even the appropriateness of judicial review – bear out the judgment that keeping him off the court was a victory over extremism. Thomas should have been defeated on the merits of his ideas, like Bork. That his nomination became a battle over serious allegations of sexual misconduct is regrettable, but it was unavoidable once Anita Hill and others came forward. Those who should look back in shame on that nomination battle today are not Thomas’s accusers and those who took their charges seriously and respectfully; it was senators like Alan Simpson and Arlen Specter who treated the accusers with sexist contempt.

The noose on freedom

Second, I accept (with a few reservations) Scruton’s characterisation of an open society as one in which:

• I can express my views and have them debated freely
• institutions that confer political power are open to competition from outside the established elites
• economic activity is based in free exchange
• the rights and freedoms of the citizen are secured by an impartial rule of law

I don’t claim that my essay made an exhaustive case that these features of the open society were being assailed; the original, longer, privately-circulated memo had extensive footnotes sourcing and elaborating my arguments. But in three of these areas I do make the case that serious erosion has taken place:

• the increasing concentration of the media and the efforts to monitor and restrict the content of public-service broadcasting threaten the free exchange of ideas
• the manipulation of electoral jurisdictions and voting narrowly limit political competition to the point that only a relative handful of seats in Congress are truly contested in any election cycle
• the impartial rule of law is endangered both by ideological court-packing and by Congress’s threats to limit the federal courts’ jurisdiction and funding whenever a ruling is not to its liking

If Roger Scruton truly believes that under the George W Bush administration we have reached the ideal state “when judges are appointed on the basis of their legal skills and without consulting their political beliefs”, I believe a bridge in Brooklyn may still be for sale.

Scruton is right to say that conservative pundits expressing their views or people who speak out against progressive ideas do not threaten open society. Indeed, the free exchange of views is the essence of an open society. But when public power is used to punish contrary views through defunding universities or instructing state-funded broadcasters about which programmes they should air, we should all feel a chill.

I’m not moved by Scruton’s effort to improve the open society grade of the United States by comparing it with Vladimir Putin’s Russia or the theocracy of Saudi Arabia. That he feels compelled to make his case that way only shows how far open society in the US has sunk.

A question of language

Third, I thought long and hard about whether to use terms like “neo-McCarthyism” and “theocracy” because I don’t like to go over the top, whatever Scruton may think about my judgment. I thought Amnesty International was wrong to call Guantànamo, with its many severe and troubling rights abuses, a “gulag,” because language matters.

Gara LaMarche is vice-president and director of US programmes for the Open Society Institute. His blog is here

Roger Scruton is a philosopher, writer, and farmer. His blog is here

We are not living in a period quite like the McCarthy era today. But we are slipping down that path. The McCarthy era started with a few intrusions that, while wrong in retrospect, seemed reasonable to many at the time – including barring communists from sensitive national-security posts. Within a few years, you couldn’t get a barber’s license in Indiana without swearing a loyalty oath.

Incursions of liberty in the face of a war against communism or terrorism are insidious and incremental. Even at the height of the McCarthy fervour there were few with the platforms of power or privilege who stood up to it – though, as with the apartheid American south, few living today admit how complicit they were in it.

Nor are we a theocratic state, but the downward slide is steady there as well – look at the scandalous promotion of fundamentalist Christianity by the US air force and the huge flow of public dollars to politically-loyal evangelical charities under the Bush administration’s “faith-based” initiatives.

Roger Scruton is free to disagree or debate these matters – it’s still a free country, after all. But I would rather sound the warning and be proven wrong than sit complacent while the best and deepest American traditions and values are being eroded around me.