In response to Greenwald's argument for closing Guantanamo Bay to the effect that there is absolutely no danger in bringing its inhabitants onshore to the territorial United States, I noted, among other things, my prior writings on the attack by an imprisoned jihadist (Mamdouh Mahmud Salim, a high-ranking Al Qaeda terrorist who was awaiting trial for the 1998 embassy bombings in Kenya and Tanzania) in Manhattan on prison guard Louis Pepe. Greenwald's initial responses, on Twitter? First this (emphasis mine):

Some right-wing blogger - @baseballcrank - answers that in 2001, a Muslim attacked a guard. Is there anything the Right doesn't fear?

"A Muslim." Now, personally, while I recognize that a man like Salim derives his murderous ideology from his religious beliefs, I would not simply equate a high-ranking Al Qaeda terrorist with "a Muslim." But Greenwald wasn't done; his high dudgeon prompted him to Tweet again:

Right-wing blogger: 8 years ago, a Muslim prisoner attacked a guard so now all Muslims must be kept in cages on a Cuban island with no trial.

Emphasis, again, mine. Now, besides insisting that there is no distinction between Al Qaeda and "all Muslims" he falsely attributes to me a sweeping position bearing no resemblence to reality. But hey, it's his shtick, he can do what he wants with it. Greenwald liked this latter formulation so much he worked it into his column's discussion of my response, even putting the whole thing in italics:

[T]hat's a perfect distillation of the fear-wallowing right-wing mindset: hey, one time, 9 years ago, a Muslim Terrorist attacked a prison guard, so now we have to keep all Muslim Terrorist-prisoners in cages on a Cuban island with no trial because I'm too scared to keep them in an American prison.

Greenwald's column argues that (1) there are already a number of terrorist prisoners held in U.S. maximum security facilities without incident and (2) there's no shortage of prison violence as it is among non-terrorist prisoners. Both of these facts are true enough as far as they go, but neither gets him where he wants to go. To begin with, Greenwald obdurately refuses to face up to the central contradiction in his argument: he treats the security threat as if 100% of GTMO detainees will be automatically remanded, indefinitely, to SuperMax facilities. But that flies in the face of the whole reason why he objects to GTMO in the first place, which is that he wants the detainees tried in the justice system, which inevitably involves the risk that some will end up released or acquitted. He can't argue on the one hand that they are no danger because they will all be permanently, securely incarcerated in an escape-proof hole and at the same time that some of them should be set free. Greenwald has, of course, his own arguments for why he thinks there's no risk that evidentiary and procedural issues would lead to dangerous terrorists being released (or, as in the case of one recent conviction touted by the Obama Administration, sentenced to no more than 15 years), but he readers demand no more of him, and it would expose the holes in his supposed logical syllogism to explain this.

Greenwald also acts as if the detainees will be magically teleported, Star Trek style, from GTMO to their final destinations in SuperMax. But of course, in the real world, prisoners have to be transported into and around the United States, then held locally pending trial, entailing frequent trips to the courthouse. It was in such a local prison, the Metropolitan Correctional Center in downtown Manhattan, where Salim attacked Pepe. While prison breaks are not as common or easy to execute in the real world as in Hollywood's imagination, it's unquestionably true that a prisoner poses a greater harm to others and a greater threat of escape when being transported or held in a local facility, even a local military facility not designed for such inmates. Consider the federal security precautions the City of Alexandria needed just to handle the trial of one man, Zacarias Moussaoui, as a result of which local (Democratic) officials and businesses are eager to avoid any more terror trials:

Moussaoui, who spent 23 hours a day inside his 80-square-foot cell, was constantly monitored and never saw other inmates. An entire unit of six cells and a common area was set aside just for him.

"It was a real hassle," said Alan Yamamoto, one of his lawyers. "Bringing even two or three or four people over there is going to be a major headache."

+++

The 450-inmate jail was locked down every time Moussaoui was moved to the back of the nearby courthouse in a heavily armed convoy. Traffic was stopped as snipers watched from rooftops.

These precautions are common sense reactions to the reality that as bad as the most dangerous felons are, terror detainees present significantly greater threats. Let's consider the ways:

-They are willing to engage in suicide attacks and believe they will go to eternal paradise if they die killing infidels. This separates them from the typical violent felon who at least has a strong instinct for self-preservation. The savagery of the attack on Pepe is a sample of this; another is the practice of jihadists in the field of feigning surrender so they could get close up and explode bombs to take themselves with their captors. Does any serious adult believe that there's no distinction in the level of security needed to handle such people?

-They have a specific ideological hatred for the U.S. government and, thus, its employees, that goes beyond the ordinary attitude of drug dealers or gang bangers who regard the government principally as an obstacle.

-They are connected to international organizations with money and weapons and a powerful motivation to make trouble.

-They may continue to have valuable information they want to share with their un-captured comrades. Greenwald mentions the Blind Sheikh, Omar Abdel-Rahman, but he neglects to mention the fact that the Sheikh's lawyer was convicted of helping him communicate his continued advocacy of terror attacks to his followers:

Prosecutors say she and two co-defendants helped her former client, imprisoned blind cleric Omar Abdel Rahman, transmit messages to the group's leaders in defiance of prison restrictions.

+++

Stewart defended Rahman, the Islamic Group's spiritual leader, against 1993 charges that he plotted to blow up the United Nations, an FBI building, two tunnels, and a bridge in New York City. He was convicted and is serving a life sentence in a high security prison, where Stewart had numerous meetings with him.

From 1997 to 2002, Stewart and her co-defendants helped Rahman pass messages to followers in violation of government- imposed restrictions, prosecutors alleged. Rahman relied on the three to withdraw his support for the Islamic Group's cease-fire with the Egyptian government, which the organization adopted after its 1997 attack left 62 people dead in Luxor, Egypt, they say.

-They may seek to radicalize other prisoners they come in contact with, a concern expressed by the director of the FBI. The recent incident of synagogue bomb plotters who had converted to a violent, radical strain of Islam in prison underlines this dynamic, although in their case the catalyst seems to have been a radical imam influential in the state prison system rather than fellow prisoners.

Assuming a 100% prosecution and conviction rate, none of these security obstacles is necessarily insuperable, as the Moussaoui experience shows: all you need to do is massively expand the manpower and resources dedicated to guarding each individual at all times, expend large amounts of prison space to keep them in solitary at every juncture, severely restrict their contact with outsiders and other inmates, surround them with federal personnel trained in handling the specific problems created by these kinds of detainees, and bring entire communities to a grinding halt every time you move them. In other words, try to replicate as nearly as possible a moving Guantanamo for each individual prisoner. Which raises again what exactly the point is of such an exercise, when the far more logical solution already exists for accomplishing all of these goals by holding the detainees collectively in a military installation designed and repeatedly reviewed and revised to fit the unique security challenges. Unless the point is just to give Glenn Greenwald something to do shtick about.

White involved a Minnesota statute restricting speech by candidates for elected judicial office, which Justice Scalia (writing for the Court), characteristically found to be inconsistent with the unambiguous free speech guarantees of the First Amendment. Linkins selects the following quote (emphasis his):

This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.

Taking the language in bold first, Justice Scalia was talking about the common law. For the non-lawyers out there, a lot of areas of state law are common law, i.e., judges apply rules developed by judges. This is true of contract law, or personal injury law, for example. State legislatures can and do add their own rules, and judges aren't unconstrained in making common law - the weight of precedent is important in areas where judge-made law has developed over centuries - but a common law court indisputably can and does make policy. Quite sensibly, Justice Scalia notes that in light of this legitimate policymaking power, the citizenry in electing state court judges should be allowed to hear their policy views.

That has nearly nothing to do with the role of the federal courts, however, where Judge Sotomayor and Justice Scalia both sit. It has been established law since the 1930s - it's one of the first things every law student learns - that there is no such thing as general federal common law. There are some discrete areas of federal common law - maritime law, federal contractor law, etc. - but the big ticket issues for the Supreme Court are its constitutional and federal statutory dockets. In point of fact, Justice Scalia has been an opponent of the expansion of federal common law (see his 1994 opinion for the Court in O'Melveny & Myers v FDIC). Still less is the power to make common law a legitimate way for judges to approach the Constitution.

Scalia's reference to state-court power over state constitutional law is, to put it mildly, not an endorsement of the sort of judicial policymaking he has long railed against, as the citation to the Vermont Supreme Court's decision in Baker - which compelled Vermont's lawmakers to accept same-sex civil unions on questionably creative state constitutional grounds - should have signalled to the attentive reader. His perhaps-subtle point was, rather, that voters should get to hear more from judges precisely because they have lately been in the habit of taking issues away from elected officials as they did in Baker. The final sentence of the quotation makes that rather explicit: voters want to elect judges to stop them from making policy against the voters' wishes.

Then we have a further extended quotation from footnote 12 of the opinion (it's a footnote to that same paragraph dealing simply with rebutting further arguments by the dissents):

Although Justice [John Paul] Stevens at times appears to agree with Justice [Ruth Bader] Ginsburg's premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 ("[E]very good judge is fully aware of the distinction between the law and a personal point of view"), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 ("If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls"); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. "[I]f announcing one's views in the context of a campaign for the State Supreme Court might be" protected speech, post, at 3, n. 2, then-even if announcing one's views in the context of a campaign for a lower court were not protected speech, ibid.-the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376--377 (1987) (dissenting opinion).

Emphasis again Linkins'. Obviously, this is simply a continuation of the point about the state judges who were at issue in White (plus Justice Scalia is obviously trying to throw some of Justice Stevens' own prior views back at him, without necessarily endorsing them).

Supreme Court fights involve the basic, core issue of the legitimacy of judicial power and the ultimate scope of democratic self-government. Because of that, and because the core concept of legitimacy is one that can and should be understood by ordinary citizens, I would not argue that the issues at hand should be left solely to the lawyers to argue about. But just as pundits and bloggers sometimes need to talk to military people before making mistakes about matters within the sphere of military expertise, it's a good idea to ask a lawyer before you go quoting judicial opinions. You might, like Jason Linkins, end up making a fool of yourself.

UPDATE: I should add, by the way, that I actually like Clarkson's new album quite a bit... it's kind of cheesy, of course, but I'll take a little too cheesy over a little too hip and ironic any day of the week. Oddly, I had never had any familiarity with her music until maybe a month ago (I have never watched American Idol, although through the usual pop culture osmosis I have a general idea of who wins every year). More broadly, I have a terrible time locating new music to listen to, given the parlous state of rock these days.

The Mind

First up, there are those who argue that the core of conservatism is the intellect, the use of reason. These tend, by and large, to be the economic conservatives, doing constant battle with the Left's efforts to repeal the laws of economic reality to cater to demagogic appeals to "fairness" and blatant nonsense like protectionism and minimum wage and rent control laws. Or the legal conservatives, struggling to hold the line for the consistent application of the rule of law in the face of appeals to "empathy." (Judge Posner, being the dean of the economic-analysis-of-law movement, sits neatly at the intersection of both). Or, at times, the national security hawks, arguing for more cold-eyed realism and fewer appeals to the self-abnegating moral vanities of the moment.

All of these have their point. Reason and intellect have a vital role in conservatism. But the intellect, taken alone, carries its own dangers and limitations. Polls regularly show that Americans with post-graduate educations tend to be less, rather than more conservative, and that's been true for years. Conservative intellectuals in particular have often been late to join the populist waves that have given political conservatism its greatest victories. More broadly, intellectuals are rightly notorious for building castles in the air that have neither appeal nor connection to the common man and the world he inhabits. Intellectuals as a class have fallen prey to nearly all the worst ideological fads and enthusiasms to sweep the Western World since 1789. Too often, as Beldar notes, intellectuals have left themselves defenseless against moral monstrosities and the seductions of power (especially where the ideology in question offers to give power to intellectuals as a class). A conservatism solely of the intellect can be a powerful force in a debate society, but it will never be either politically resonant or wholly trustworthy with power.

The Heart

The failings of intellectuals give rise to the opposite argument: that the weakness of liberalism, which conservatives must remedy, is precisely that it is a sterile intellectual creed, reducing man to his wants and his biological imperatives and neglecting what really animates the human animal: pride, anger, fear, love of family and country and all that is dear and familiar. Law-and-order and national-security conservatives will tell you that the Left's legalisms leave it unable to grapple with the true threats posed by dangerous men and too limp to appeal to legitimate needs and methods for gaining the people's loyalty and redressing their injuries. We have people on the left these days who want to bring terrorists to our shores and put them in our prisons, and cannot for the life of them understand why anyone would object to that, because they have locked themselves so thoroughly into their own mental straitjackets that they can't use simple common sense. Students of patriotism will tell you that men will fight for their homes in ways that they would never fight for international abstractions. Students of culture will tell you that all the studies and programs in the world are no substitute for what a man will do for his family if government stops trying to substitute itself for his role. Critics of abortion will tell you that the cold utilitarianism of the "pro-choice" movement and its clinical approach to the most powerful force known to humanity - a mother's love for her child - leaves women who make that fatal choice with an emotional wound they may never entirely salve. Critics of big government argue that central planning and the rule of experts is doomed to grief because it passes the point where a man is willing to be nagged.

The heart is indeed a powerful and mysterious thing, one that must be accounted for in public policy. But the heart can be an even more treacherous guide than the mind, more prone to romantic fantasies that are all the more inexplicable when the madness passes. Conservatives may thrive at times on their connection to deep emotional currents, but they are just as often called upon to curb them.

The Soul

A further school of thought is that the core dividing line between conservatives and liberals is faith. Mind and heart alike may be powerful tools, but they can only be properly guided by an informed conscience, which is a gift from God. The devotees of the role of faith in conservatism have polls on their side: even in the worst of times, regular churchgoers are conservatism's most faithful core. Strong religious faith is a powerful indicator of being conservative, moreso even than having a family, a mortgage or a job. Turning from politics to policy, certainly there is much to say for the view that a society that loses its faith loses its conservatism and, ultimately, its moral bearings and even (as Mark Steyn is wont to observe) its desire to populate the Earth with the next generation.

But faith alone is too narrow a definition. Religions are notoriously fractious and factional, so while a political consensus can be built on broadly shared moral foundations that themselves are the products of faith, one cannot be built directly on faith itself. And in any event, many faiths simply don't provide the answers needed to grapple with the myriad banal matters of politics, and are rightly suspicious of entangling themselves in trying to answer them. Conservatives may include many people of faith, but to get how conservatism works, something more earthbound is required.

Experience

Reason, emotion, and faith are all important. But the crucial and distinctive element of conservatism is experience. There's a reason why people in general tend to grow more conservative as they age: partly because they have more responsibilities and pay more taxes, yes, but also because they have seen more of life. That process is only a microcosm of the broader conservative belief in tradition: not tradition as nostalgia or fear of the unknown, but rather tradition as the proving ground of human experience, the ultimate laboratory of humanity. Experience, as the saying goes, is the school of mankind, and he will learn at no other.

Principles and Ideology

Defining conservatism as the product of experience is not to deny that conservatism, American-style at least, has general and indeed indispensable principles: patriotism, individual liberty, free enterprise, the rule of law, protection of innocent life, the centraility of faith to an informed conscience and a meaningful life. But it is experience and tradition that guide us as conservatives in applying those principles in the real world and in resolving the tensions when those values conflict.

It is also true that the conservative movement has room within it for a variety of ideologies. But conservatism itself is a philosophy, not an ideology, and every kind of ideology on the Right comes to grief when it loses its moorings in experience and tradition. Judge Posner, for example, has for years espoused - in media ranging from his judicial opinions to his blog posts - probably the most sophisticated version of one conservative ideology, the relentless search for economic efficiency and the application of that same methodology to every aspect of life. Now, the search for efficiency-maximizing rules is a useful lens for analyzing problems, but man does not live by efficiency alone, and the public wisely tends to balk when told that it should accept results people view and unjust or cold-hearted for no other reason than that it's the most efficient way of doing things.

Likewise, libertarianism is a vital element of every conservative's intellectual toolkit; the libertarian questions are the ones we need our representatives to never stop asking. Why does the government need to be doing this? Why the federal government, not states or localities? Is the problem caused by what the government is already doing? Can private business provide a solution? Should individuals bear the costs of their own choices? These are essential lines of inquiry, and the libertarian skepticism they embody is of great value. But libertarianism has only questions, not answers; it is not a workable program so much as a Socratic exercise. Just try going to your local town or city council meeting and suggesting privatizing the fire department if you want an illustration of what happens when dogmatic libertarianism collides with common experience. Even when we ask the best of questions, if we want the answers, we must look to the world as it is and historically has been.

Translating Experience Into Policy

The conservative preference for reliance on life experience manifests itself, procedurally, in four major ways: a preference for democracy over rule by judges and other 'experts'; a preference for free markets over centralized planning; a preference for federalism over one-size-fits-all centralized government; and respect for tradition in all things.

(1) Democracy

Democracy may not seem like a point of controversy in modern America, but it is, and conservatives time and again end up standing on the side of increasing the power of democracy in its long struggle against centralized, unaccountable authority.

Now, conservatives generally do not fetishize democracy for its own sake. Many conservatives would share Winston Churchill's observation that the best argument against democracy is a five-minute conversation with the average voter. Indeed, it's not hard to find conservatives who would, at least in theory, be perfectly happy to live under a monarchy if it respected liberty, free markets, the rule of law and the other virtues treasured by conservatives. The Founding Fathers themselves were mostly content to call themselves loyal subjects of the King so long as their established rights were respected. Experience, not ideology, taught them otherwise.

Yet, conservatives in modern America are not only staunch defenders of democracy, they are often - as in the case of Ronald Reagan and George W. Bush - eager to evangelize it around the world. Why? Because long experience has shown that, in Churchill's more famous phrase, it is the worst form of government except all the others that have been tried. The good king may be preferable to messy democracy, but the good king is a rare breed - one is far from guaranteed to get a good king at the outset, and even if you do, he is subject to the corrupting temptations of power and difficult to be rid of without bloodshed if he goes astray. Democracies are, we know from experience, less apt to make war on one another, and more pliable in correcting their own errors. When coupled with the separation of powers, democratic governments are also, whatever their periodic failings in this regard, less likely to make dramatic changes generally and specifically less apt to toss away long-recognized rights of the citizen and long-established forms of common sense. As George Orwell wrote in explaining the deficiency of government by so-called experts:

The immediate cause of the German defeat was the unheard-of folly of attacking the U.S.S.R. while Britain was still undefeated and America was manifestly getting ready to fight. Mistakes of this magnitude can only be made, or at any rate they are most likely to be made, in countries where public opinion has no power. So long as the common man can get a hearing, such elementary rules as not fighting all your enemies simultaneously are less likely to be violated.

Democracy's virtues arise from that connection to the common man, who is valuable not because there is great virtue in being "common," but simply because the common man, being more numerous than the uncommon man, has more opportunities to learn from his mistakes. Democracy draws from a broader pool of human experience than other forms of government, by involving the greatest number of people in the making of decisions, thus bringing to bear the most wisdom (the most folly, too, but individual decisionmakers are hardly immune to folly).

This is precisely what separates it from the liberal/progressive model by which the wisdom of the people and their representatives is considered suspect if it collides with the "conscience" or judgment of a much smaller number of experts. This is especially blatant when judges arrogate to themselves the power to decide things like what rights are "fundamental" or what punishments are uncivilized, even when the public has voted them into law. Abrogation of democratic enactments by judges is unconservative in three ways: it substitutes the experience of the few for that of the many; it is often based solely on appeals to a narrow type of reasoning, rather than the competing judgments of reason, emotion, faith, tradition and experience that inform the views of the populace as a whole; and it involves pronouncing rules that are inflexible and hard to change if proven faulty through trial and error. Conservatives do, of course, recognize that sometimes the judiciary is charged with restraining the popular will - but the judiciary acts legitimately in doing so only when it is bringing to bear the popular judgments of prior generations. The core concept of conservative judicial review is to invoke constitutional limitations grounded in tradition and blessed at some time in the past by the people - in short, to say that the judgment of the people today must give way only to a judgment made with greater reflection by the people in the past. Yet the Framers of the Constitution nonetheless allowed for the possibility - in Article V's amendment process - that the people could always win out in the end over their predecessors, but only if their determination to change the constitution was sufficiently sustained and widespread. This vision of gradual and broad-based change over time is precisely the opposite of the progressive vision of sudden, jolting, permanent revisions by small numbers of legal specialists.

And the judiciary is hardly the only area where liberal/progressives seek to erode democratic decisionmaking and its necessary companion, democratic accountability (i.e., the means for the people, upon deciding that something has been tried and hasn't worked, to hold responsible the people ultimately in charge); the proliferation of independent agencies, the rise in power of unelected international institutions, the creation of this or that permanent mandated legal entitlement, and the use of the federal government to relieve states of direct responsibility for financing their own spending are all destructive of the basic principle that the best decisions are those made by the most people and subject to their continual review as experience warrants.

In foreign affairs, the enthusiasm for democracy has sometimes created controversy within as well as without the conservative movement. Critics are apt to decry President Bush's view of the value of democratizing Iraq and other Middle Eastern states as being unduly utopian social engineering. The critique is not a totally unfair one and outside the scope of this article to resolve, but there is nonetheless a powerful argument in favor of the Iraq War and the subsequent democratization of Iraq precisely on the theory that the war was about removing the obstacle of a bad government and replacing it with the kind of government that has been proven by experience to be the best option across many different cultures over the past several decades. As I have written before, the conservative argument is that since men can change governments more easily than governments can change men, the best one can do to address the problems of dysfunctional Arab Muslim societies is to remove the obstacle of a problematic centralized government and give the people the space to work things out on their own - a model more consistent with the American Revolution, as well as those in Eastern Europe, rather than the French or Russian models whereby a new government seeks to compel society to fit its theories.

(2) Free Markets

The conservative enthusiasm for free markets is, at the end of the day, simply another aspect of conservative enthusiasm for democracy. Both have their failings, but the idea in each case is that the individual decisions of the many from their own experience, when added together, will produce more reliable value judgments over time than the dictates of the few, however well-intentioned or technically proficient. Free markets for products, for investment capital, and for labor are the ultimate example of trial and error - and they work only when the error part is permitted to exact its price. The U.S. auto industry, for example, has been brought to its knees over time by the consumer and investor markets' judgment of the industry's product line and cost structure. Expecting an 'auto czar' with no background selling cars to pronounce a different verdict is the classic triumph of hope over experience.

(3) Federalism

Louis Brandeis famously referred to American state legislatures as "laboratories of democracy." Brandeis was no conservative, but he understood that the best way to promote progress in government over time was to start small, test ideas in one place and see if they work before imposing them across the nation. Federalism in the United States is an accident of history, but then conservatism is all about accepting the accidents of history if time tests them and finds them useful. What makes the conservative preference for federalism consistent with the preference for democracy and free markets is the idea that, yet again, the states provide a broader base for decision-making and a wider scope for stress-testing different approaches: 50 state legislatures are better than one, and state and local lawmakers, being closer to the people they govern, are more apt to make decisions based on local experience rather than ideology. States and localities can and do make terrible mistakes, but the nation as a whole is not saddled with them so long as other states and localities are free to witness the experience and choose a different path. On economic issues this is obvious: different tax and regulatory structures produce different results, and over time people and businesses migrate to the ones that produce results they prefer. On social issues, the nation would have a much more stable basis for resolving debates about, say, same-sex marriage or legalized marijuana if there was more confidence that differing localities could experiment with different rules without having to export them nationwide. Even on those issues where the federal government was ultimately needed to forcefully intervene, like slavery and Jim Crow, federal action did not come until there had been decades of experience with free states or states without segregation to offer a positive model to provide a contrast.

(4) Tradition

Perhaps the classic distillation of the antithesis of conservatism is the line popularized by Robert F. Kennedy that "some people look at the world as it is and ask why; I look at the world as it could be and ask why not." Now, this credo is a wonderful one for the inventor, the entrepeneur, the academic opening a graduate seminar. Asking "why not" is a fine way to stretch the mind to seek ways to try new things and find new answers.

But it's a horrible way to make public policy, which always must be rooted in knowing why the world is as it is. Conservatives can love theory, and experiment with all sorts of intellectual exercises, but fundamentally the only sustainable basis for conservatism is to offer solutions that have already been proven to work in the real world. That doesn't mean conservatives are slavish devotees of the status quo; far from it. Edmund Burke's famous dictum that a society without the means of change is without the means of its own conservation is as true today as it was 220 years ago.

The difference between the Burke worldview and the RFK worldview is respect for tradition. I've listed tradition fourth among the ways in which conservatives put the value of experience into practice for a reason: to emphasize that it's only one of several tools used by conservatives to determine what works and what doesn't, what is and isn't consistent with human nature, what solutions can be implemented without massive unintended consequences. But it remains experience's ultimate proving ground because it draws on an even larger sample size of human judgments and human life experiences than democracy or markets or federalism. Social, cultural, political, religious, legal and economic traditions incorporate within them the vast sweep of thousands of years of trial and error; as GK Chesterton was fond of saying, tradition is the true democracy, superior to the tyranny of whatever generation happens to be walking around at a particular moment. Human beings do things in particular ways for reasons they often do not even understand or think about because someone before them tried and witnessed the results. Liberals may love calling themselves pragmatists too, of course - but a pragmatism that discards tradition deprives itself of the raw material to test whether a purportedly pragmatic solution actually works.

What is most ironic about the Left's disdain for tradition is that it emanates from the same people who are most strident about the sacrosanct and unquestionable nature of Darwinian evolutionary biology. I have no quarrel with evolution as a scientific theory, but to recognize the basic mechanism of natural selection is by necessity to admit the value of tradition as a fundamental organizing principle of nature: that which works over time prospers, and that which does not falls by the wayside. Tradition, properly understood, is not statis; it is change, but change over time by constant experimentation with the new and comparison of its results to the old. It is growth that is organic to the human family. It is the school of mankind; and all the dictates and mandates of government can make us learn at no other.

Where Do We Go From Here?

Conservative successes in politics and policy have always been rooted in experience, in offering solutions that were consistent with the common experience of voters and that stood in contrast to the liberals' impractical efforts to bend the world to fit their theories. Conservatives rose from the 1960s to the high water marks of 1980 and 1994 by connecting with real worries about liberal theories run amok in law enforcement, tax, and welfare policy, and by offering solutions that were easily connected to common sense experience and historical tradition and/or were successfully tested locally. Obituaries of Jack Kemp, for example, noted that his view of the supply-side virtues of reducing marginal tax rates was based on study of how John F. Kennedy's tax cuts worked in the 1960s. By contrast, conservatives under George W. Bush struggled when the public was unconvinced that we were being conservative: when voters believed the Iraq War or Social Security reform to be unduly ambitious rather than in line with the lessons of experience and tradition. A conservative resurgence under the current government is most likely to depend on public recognition that the Democrats are doing things that just don't, in common experience, make sense.

Conservatives going forward should not take this lesson as a reason never to propose big ideas and big solutions, but the movement's many ideological factions can best sell themselves to the public by respecting the value of experience. Take control at the local or state level to test-run ideas (one reason why Barack Obama has fought so hard to compel GOP Governors to accept stimulus money and spend it as he wants it spent is precisely to prevent any Governor from offering a different model). Explain to voters why and how conservative proposals are consistent with things that have worked in the past, and why and how the left's ideas seek to impose ideology on reality rather than the other way around. Principles are fine things, but the voters by and large see our principles as secondary to a decent respect for how things work and what people are really like.

The conservative may seek to promote many good values, but liberals too have their own values. The conservative may make moving appeals to reason, emotion and faith, but liberals have their own appeals. The conservative may offer a hopeful vision of the future, but liberals offer their own vision and their own hope. At the end of the day, what makes conservatism both distinct and viable is not the castles it builds in the air but the roots that hold it deep in the ground. The essential element of conservatism is that by learning from experience and tradition, it reflects the world as it really is.

There are two reasons for this. The first is the brutal calculus of political hardball: when you have the enemy down, you finish her off, lest she recover and be stronger, and your ammunition stale, by the time you fire again. You don't let her get up and catch her breath and try to get her own counter-narrative out. You can't predict the flow of events, and you can't predict with certainty how much damage any particular charge or revelation might do, so better to use what you have when you have it, and get the most you can. This is how the Democrats took on Gingrich and DeLay and, for that matter, Bush - and the accumulation of damage eventually took its toll. There are rare exceptions to this rule: for example, Rahm Emanuel knew for months in 2006 that he had 100% damning stuff on Mark Foley, but since it was so damaging and Foley was a comparatively small fish by himself, it made sense for Rahm to keep quiet and have the story go off closer to the election. But that's the exception, not the rule.

Second, even if - as seems more likely - this story doesn't really have enough juice to take out Pelosi all by itself, it's undeniably become a serious distraction. And that itself is a thing of great value right now. Quick: in the past three decades, how many times has a political party passed a major domestic policy priority through legislation more than six months after taking control of the White House or one or more Houses of Congress? I don't know the answer either, but I'm pretty sure it's "not many." This is a point I have noted in regard to the Bush Administration, and it's just as true of the Democrats: they will not have an unlimited window of opportunity in which to nationalize health care and pass a ruinous cap-and-trade program, major tax hikes, EFCA, and other significant priorities. The clock is already ticking four months into the Obama Administration, with the summer recess gradually creeping closer and a potential major battle brewing over the Supreme Court. Every day that the Speaker is tied up defending herself over an issue the Democrats thought would help them is a day that her attention, and the headlines, are pulled away from the rest of the legislative agenda. Even Republicans who would like to keep Pelosi around another year for electoral advantage have to realize the even greater priority on stopping that agenda now, for the good of the country.

The Pelosi story has mostly taken on a life of its own by now, and/or is being driven by sources in the CIA or elsewhere in the intelligence community; much of this is in any event beyond Republican control. But if Republicans get the opportunity to keep the heat on the Speaker, they should.

(1) Crist Is Abandoning His Post.

This is the underreported aspect of what Crist is doing, on the national level - but it's not going unnoticed in Florida. The GOP has held the Governor's mansion in Florida for 11 years now, through two highly successful terms of conservative Governor Jeb Bush and now the more moderate Crist enjoying the fruits of the Bush-built party. Crist hasn't been an especially great Governor, but he's popular enough and he's handled managerial aspects of the job (e.g., hurricanes) pretty well. He'd be a very strong favorite for re-election in 2010, likely running unopposed for the nomination and allowing the Florida GOP to put the bulk of its efforts behind the Senate race and the down-ticket races. And holding the statehouse is especially critical, with redistricting on the horizon after the 2010 Census - for the future of the party at the state level as well as in the House, the Governor's mansion may even be a bigger deal than the Senate, which is saying quite a lot. Anyone with a passing familiarity with how political parties work should know this, which is what makes it so infuriating that the NRSC wants Crist out of the Governor's race.

The Miami Herald lays out the ramifications down-ticket, where Crist's maneuver opens up a chain reaction of contested races for Republican-held offices:

Besides Crist and Sink, the other statewide elected officials expected to seek new office are Attorney General Bill McCollum and Agriculture Commissioner Charles Bronson, both likely to run for governor.

Crist's bid could also leave the Republican Party of Florida in the lurch, putting at risk its control of the governor's mansion and Florida's Cabinet. And with Crist running for federal office, he no longer can raise corporate contributions or unlimited "soft money" for the state party. That means that the state GOP, already cutting staffers and facing fundraising challenges with the sour economy, loses its top money-raiser.

"It's a huge problem for Republicans, and it certainly plays into the other side's hands," said Republican consultant Brett Doster of Tallahassee. "It's going to put the party in a more defensive posture than it has been in a couple decades."

What's more, some Republicans are worried about their top contender for governor, McCollum. He has lost two of three statewide bids since 2000. Sink, considered the Democratic front-runner for governor if she runs, won her first and only statewide campaign in 2006.

"Bill McCollum is a great attorney general, but I think sometimes when individuals have run too many times statewide, you have to look at who's electable in a general election and then everybody needs to get behind that person in a primary," said Kathleen Shanahan, chief of staff to former Gov. Jeb Bush.

The only party leaders who would encourage Republicans to take this course are Barack Obama and Howard Dean.

(2) Crist Is Throwing His Weight Against A Rising Star

For all the talk about ideas - and ideas do matter quite a lot - political parties win and lose elections with people. And when you have good people on your team, you want them to succeed and advance.

Marco Rubio is one such person. Only 38 years old, the charismatic, Miami-born Cuban-American Rubio - a lawyer and father of four - has risen swiftly in his decade in Florida politics, serving as a City Commissioner for the City of West Miami before entering the Florida House, where he served four terms, served first as Majority Whip during the last redistricting, then Majority Leader and finally Speaker of the Florida House before term limits forced him out of the job in 2009. You can read more here on Rubio, and watch him in action:

And announcing his Senate run:

Rubio is everything older Republicans like Crist should be encouarging: he's young but already experienced as a leader, he's telegenic and a good speaker, he's conservative, and yes, he's Latino, a demographic that a more inclusive Republican party would be reaching out to, not spurning. Here's the reaction from the conservative Hispanic Leadership Fund:

We are highly disappointed that the Republican establishment would slam the door on Marco Rubio, who is the kind of candidate that the GOP should be eagerly supporting. We have heard a lot of talk about how the party wants to find qualified Hispanic candidates to run for office but in the end we see once again that this is nothing but lip-service. Additionally, as conservatives, we are doubly troubled that Rubio has been so swiftly brushed aside by the powers that be. Republicans cannot be a governing majority again until they earn more Hispanic votes, and this move certainly does not help them in this regard.

Charlie Crist has talked a good talk as Governor about promoting diversity, but here we have a guy who is every bit as qualified as Crist to hold statewide office as a legislator - and rather than find a way to co-exist with him, Crist bolts his own job to try to stop Rubio. So much for outreach.

(3) Crist Is Picking An Ideological Battle

Florida is one place where the moderates and the conservatives have, by and large, managed to get along pretty well, as illustrated by statewide victories by the likes of Bush, Crist, Martinez and McCollum, men who certainly don't see eye to eye on every issue. By running Crist for re-election and Rubio for the Senate, Republicans could send a clear message to voters that the state party remains big enough for both groups. Instead, Crist is jumping into a messy, expensive primary race that will split the party into clearly-defined ideological camps and is bound to leave hard feelings on both sides. Moderate Republicans can complain all they want about the Pat Toomey primary challenge to Arlen Specter, but make no mistake: in this race, it's the moderate picking a fight to muscle out a conservative in a state where there is no serious question that conservatives have won and can continue to win races statewide.

(4) Crist Is Leading The Wrong Way

Finally, to be blunt, Crist is wrong on the biggest issue of the day: whether Republicans should oppose President Obama's plans to massively increase government spending and government control of health care, banking, energy, the auto industry, and indeed virtually every aspect of the U.S. economy. His embrace of the wasteful $787 billion stimulus package is the first step in a political Jim Jones act, by which Republicans abandon the clear distinctions that give voters any reason to choose Republicans over Democrats. It's one thing for Crist to be a moderate back home in Florida, where he has to work in a coalition with other Republicans, but it's entirely another to send him to Washington on a platform of joining the Democratic coalition on one issue after another. The party simply can't survive if it's identified with Obama's agenda, and why would such an opposition party appeal to anybody?

Finally, John Cornyn has proven that he has learned absolutely nothing from the fiasco of 2006, when the GOP lost close Senate races elsewhere after pouring millions into a primary race to prop up Lincoln Chaffee. You don't cannibalize key offices like the Florida Governorship to recruit candidates, and you certainly don't do so to poke a stick in the eye of the party's base by creating a contested primary against a rising star who appeals to a crucial demograpic. It's a loser move all around.

I. Get To The Merits

Republicans in recent battles over judicial nominees, especially those conducted while the GOP held a strong majority in the Senate, have had an unfortunate tendency to fall back on proceduralism. That means making arguments primarily along the lines that if a candidate is "qualified," he or she should be given a floor vote by the Senate, without getting into matters of judicial philosophy or ideology.

This is perhaps the best tactical approach if you control the White House and need to apply pressure to wavering Senators, given that there's a fairly broad bipartisan popular consensus that is at least vaguely in favor of deferring to the President in the judicial selection and confirmation process. But as a matter of long-term strategy, it's terribly short-sighted.

Sure, arguments about merit, like this Pejman essay, are important. Lack of qualifications was ultimately what turned me and many others who had no particular ideological reason to oppose her against Harriet Miers. But qualifications are not the core issue. Let's say I was starting a team that aimed to win a championship, and I asked you whether LeBron James was more qualified than Albert Pujols. You could not answer that question without first asking me whether I'm playing basketball or baseball - because the two men make their living trying to accomplish completely different things.

The simple fact is that Republicans have a fundamentally different view of what judges are trying to accomplish. And so, ipso facto, a judge who is highly intelligent and experienced may be "qualified" in the abstract, but is guaranteed to perform poorly if he or she is not even trying to do the things those of us on the Right believe are the essentials of the job.

Obama has been known to say things like this in describing what a Justice should be like:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

Now, empathy is not a bad thing in the abstract (although a little empathy for the unborn, the soldier, the cop, the Christian, the victim of crime or terrorism among others, might offer some balance to that picture), but in terms of putting it as the centerpiece of a judicial philosophy...well, imagine how liberals would feel if George W. Bush had said the most important thing in a judge was being patriotic or a good Christian. Just because something is an important value for people or government officials generally doesn't mean it's the job of the judiciary.

Republicans disagree fundamentally with the view that "empathy" is a Justice's primary job. Instead, we believe that the job of judges is, at its core, to recognize that all legitimate exercises of judicial power derive from the consent of the governed. That job is carried out by figuring out what exactly the people - acting directly or through their elected representatives - agreed to when they enacted the Constitution and federal statutes. Making that determination doesn't decide 100% of the issues presented to the Supreme Court, of course, but it's the bedrock foundation without which the Court's exercise of power is fundamentally illegitimate, and the Court must decide that question, and determine if it disposes of all the issues at hand in a case, before it proceeds to any other question. But Obama and his allies simply refuse to be bound by the need to limit themselves to such constraints on their power.

The Republican position has a lot of popular appeal, much more than the competing view of judicial imperialism (that the judiciary should stop the elected branches from doing things that violate the judges' moral and public policy views) and, worse yet, transnational progressivism (i.e., the notion that American law should conform and ultimately subject itself to European/Canadian-derived "international" law without regard to the consent of the American people). Republicans have a winning philosophical argument on the merits, one that goes to the very core of our continuing status as a democracy; we should not fear to make it.

Perhaps the best evidence of the enduring popularity of judicial conservatism is the other side's perennial and often-desperate attempts to blur this distinction and appropriate its language. Justice Stevens has been known to claim that he is a conservative, which is the highest tribute that can be paid to judicial conservatives: a man who is closing in on the status of oldest and longest-serving Justice prefers the conservative label to one that would distinguish his jurisprudence from that of his critics. For a recent example, Gordon Silverstein at the New Republic peddles the myth of Justice Souter as a "real" conservative, which he frames as adherence to judicial precedent but by which he really means one who never makes liberals unhappy. Orin Kerr explodes that myth. A sample:

[T]he two Justices on the current Court who vote most frequently with each other are often Justice Souter and Justice Ginsburg. Looking at the current Supreme Court Term, for example, the Souter/Ginsburg pairing is the most common: They have fully agreed with each other 88% of the time. The next closest pairings are Scalia/Roberts at 83%, Roberts/Alito at 81%, and Thomas/Scalia at 79%.

This is even before you consider the numerous occasions on which Justice Souter has not adhered to precedent, ranging from recent reversals on the 8th Amdment to Lawrence v. Texas, just to pick a few of the more sensational examples.

Putting the argue-the-merits approach into practice, of course, doesn't mean ignoring short-term tactics entirely. Certainly, we should want to win the battle ahead. But tactics are not everything, and the odds against victory are prohibitive: even if Obama picks a poor nominee who generates significant Democratic opposition, the fact remains that he has close to 60 votes in the Senate; he'll get some choice of his eventually, whether it's his first choice or not.

Thinking strategically, therefore, Republicans and conservatives should prioritize, not immediate tactical advantage, but long-term victory, by focusing on educating the public about how Obama's nominee departs from the proper and legitimate interpretation of the law and how the visions of the two sides differ on this issue. Elections have consequences - and the loser of the election should not hesitate to point out what those are.

II. Be Willing To Apply The Obama Standard

Many of us on the Right have long argued, on principle, against the filibustering of judges. Personally, while I'm comfortable with using the filibuster to delay floor votes on a nominee to ensure the gathering and dissemination of sufficient information about the nominee, I regard it as an important practice for the Senate, as a matter of courtesy and tradition, to give the President an up-or-down vote on all his nominees.

But let's face it: we had a long national argument on that point, and we lost. The other side didn't adhere to that view of deference. In the 2008 election, we nominated a candidate who voted in favor of every SCOTUS nominee during his career, ranging from Bork to Ginsburg; the Democrats nominated a man who participated in numerous filibusters of appellate nominees, voted to filibuster Justice Alito, and voted on the merits against the two SCOTUS nominees (Roberts and Alito) to come to a vote during his brief tenure as a Senator. Orrin Hatch led the way in convincing Senate Republicans to give a fair vote and deference to the selection of Justices Ginsburg and Breyer, and left-wingers are still using that against Republicans. Republicans should make explicit that they will give Obama's nominees only so much deference as he himself was willing to give.

Jeff Sessions, himself at one time a victim of Democratic obstruction in the Senate back when he was nominated for a federal appellate judgeship, has signalled that the GOP is not necessarily gearing up for a filibuster. I don't have a problem with this statement. First of all, it's traditional to at least profess a willingness to keep your options open. Second, as Karl Rove points out, Senate rules currently require that any nominee win at least one vote of the minority party on the Judiciary Committee, and with the loss of Arlen Specter from the minority, the pickings could be slim even without a filibuster. And third, there's a lot on the table in the Senate; if Republicans can accomplish their mission of educating the public, and if they are prepared to vote against the nominee on the merits, there may not be a point in a fruitless filibuster vote.

All that said, Republicans shouldn't rule out the filibuster. There comes a time when unilaterally standing on a principle the other side doesn't respect, out of courtesy and tradition, is just self-defeating. And in the long run - maybe not now, given how close the Democrats are to 60 votes, but sooner or later - Republican resistance could decide the Democrats on changing the rules themselves to make it easier to get judges confirmed. As with other efforts to rely on brute force, it is better to compel this to be done openly, in full view of the public. And new rules - unlike courtesy or custom - are something Republicans can use down the road to re-establish the balance they wanted all along.

How We Got Here

Let's start by briefly recapping where we have been. The Reagan Revolution did not spring ex nihilo from the mind of the Gipper; it was the culmination of decades of pent-up, un-responded to public disapproval of high taxes, big spending, heavy regulation, and extravagant and flagrantly unsuccessful welfare policies. What finally cleared the way for Reagan was unified Democratic governance and the mess it made under Jimmy Carter. Reagan, of course, was a genuine conservative on all fronts, but even Reagan had to pick his battles, leaving some segments of the party happier with him than others. Eventually, a combination of bad decisions, weak leadership, bad economic circumstances and political tides brought down Reagan's successor; at the core of the fall of George H.W. Bush was the loss of credibility that came about when he broke his pledge not to raise taxes, leaving voters in peacetime without a reason to distinguish him from his opponent.

But then Bill Clinton came to town, jacked up income taxes and came perilously close to imposing a ruinous energy tax plan and a disastrous government takeover of health care. Strong GOP opposition helped derail the latter two plans, and restore a clear contrast between the parties. The Gingrich Revolution of 1994 - like the Reagan one triggered under unfied Democratic governance - was largely about small government, taxes and spending, and the spending hawks got their turn at the head of the party from about 1995-98. They had some signal successes, including reducing federal spending to below 21% of GDP for the first time since Watergate, a benchmark it has stayed below until this year. But they were also outmaneuvered by the elusive Clinton, and after Clinton declared that "the era of big government is over" and worked with them to balance the budget (with a big assist from the late-90s tech boom), public enthusiasm waned.

The GOP responded by nominating George W. Bush, who accused the GOP Congress of "balancing the budget on the backs of the poor" and set about relegating the spending hawks to the back of the bus with the immigration hawks. Instead, Bush built a winning coalition in 2000, 2002 and 2004 on the three pillars of national security, taxes and social conservatism. With a war on, the spending hawks swallowed more of this than they generally wanted to.

Bush's record on domestic discretionary spending was never as bad as it was portrayed - certainly the contrast to Obama has reminded us of that - and he did try things (like Social Security reform) that would have made a difference if they'd passed, and some of his individual initiatives are defensible on the merits ... but DeMint aptly summarizes how the Bush-era GOP's cumulative effect, combined with a handful of Capitol Hill scandals that unsurprisingly tended to arise from allocation of federal spending, eroded the GOP's distinctive message of taking better care with other people's money and thus respecting the freedom over one's own property that forms the foundation of all other liberties:

No Child Left Behind didn't win us "soccer moms," but it did cost us our credibility on locally controlled education. Medicare prescription drugs didn't win us a "permanent majority," but it cost us our credibility on entitlement reform. Every year, another Republican quality was tainted: managerial competence, fiscal discipline and personal ethics.

Now, we come full circle. Once again, the Democrats have unified control of the government. Once again, they are on a spree, jacking federal spending up to 26% of GDP in a single year, blasting the deficit into orbit, rolling out plans for more taxes and regulations, plotting to nationalize health care and tax energy. Once again, the popular anxiety and anger is out there, as the voters wonder whether anybody has a better answer. Who should they call?

How We Get Out

In short, the current situation calls for the party to once again - as it did in 1980 and 1994 - re-emphasize spending discipline, lower taxes and less intrusive government. The fact that this is an especially powerful message when the Democrats are running things is not coincidental. But to do so, the GOP needs to convince voters of two things: first, that what the Democrats are doing is really bad; and second, that the GOP, if given more power, will actually do something and not just posture, fall back into bad habits or go along with the Democrats. And with the small megaphone of a legislative minority, Republicans need to paint in bold strokes to get heard at all.

This is why party loyalty on this issue is so critical at this time. If a lot of Republicans sign on to Obama's bills, he will have a leg up in claiming to the public that he's not really up to anything dramatic. He knows that - it's why he tried so hard (if ham-handedly) to get Republicans to support the stimulus, and why he has tried so many legal maneuvers to compel unwilling Republican governors to accept stimulus funds and thus make it seem as if they approved of the whole idea all along. (And it is, in fact, hard even for true believers to say no to the money when the federal government has effectively already taken it from your constituents and is only asking if they want a little piece of their own money back). Only a united front can match through actions what the President - by virtue of the bully pulpit - gets to say in words.

And to rebuild the GOP brand on this issue, party unity is also critical. Contrast the ever-controversial issue of abortion. It is well-known that the GOP is the pro-life party. But voters also know and understand that some Republicans - like Rudy Giuliani, or like Specter before he switched - are not pro-life. It's not difficult to accept that dichotomy: pro-choice Republicans call themselves "pro-choice," and so voters can discern the difference without a lot of difficulty and without unduly watering down the party's longstanding identification with opposing abortion.

Spending is different. All Republicans, and most Democrats, run around saying they are opposed to excessive government spending. Northeastern Republicans, in fact, have tended to excuse their views on abortion, in fact, by intoning that they are "socially liberal but fiscally conservative." What are voters supposed to believe when they hear those terms? Only what the parties can prove by their actions. If voters are unhappy with Democratic policies on spending, taxes and regulation, and they see that a bunch of Republicans voted for all those things, they will reasonably conclude - and Democrats will be happy to tell them - that Republicans don't really oppose them or that Republican opposition is somehow not realistic. "Don't listen to those guys, they just want to change who spends the money." If the GOP runs a bunch of candidates who deviate from the party line on opposition to Obama's spending plans, they water down the message of everyone who does.

The special election in NY-20 should be a wake-up call. Republicans ran a candidate who (1) was tied to the bloated, corrupt and incompetent Democrat-dominated state government in Albany, where the GOP has not done much to draw contrasts on spending discipline and its close cousin, public integrity; (2) failed to take a clear, early stand against the stimulus bill; and (3) attacked the Democrats' businessman candidate on liberal-populist grounds as an outsourcer who created the wrong kinds of jobs for the wrong kinds of people. Somehow, we were surprised that this didn't work.

And that's why even a GOP that can ill afford to lose another Senate seat is better off running Pat Toomey than Arlen Specter. Because right now, under today's political circumstances, the only road back in the short term or the long term is to offer an unambiguous message to the voters: if you are not happy with how the majority is doing things, you have a choice.

It goes without saying that a Republican First Lady who showed up at a food bank during a recession wearing $540 sneakers would never hear the end of it, let alone one who had lectured voters on learning to make do with less. But you know, it goes deeper than that. Remember how Barack Obama relentlessly mocked George W. Bush, in the tone of a petulant teenager who can't believe what Dad told him to do, for advising Americans to "go shopping" after September 11? Well, President Bush was absolutely in the right: the nation needed reassuring, and it needed to both sustain the consumer confidence and consumer demand that are the engines of our economy, and demonstrate to the world that we don't change our routines to satisfy terrorists.

Now, with consumer demand in the worst slump in most of our living memory, one of the things we need most of all from the White House is reassurance that it's OK to - you guessed it - go shopping. But President Obama, who has tiptoed up to that line a few times, can't quite bring himself to sound like Dad now that he's the one in the driver's seat. So, Michelle shops, while consumer demand drops. And then what happens? We get Joe Biden giving us the "we're all gonna diiiiiieeeeee" alarm on the Today Show, telling people that he'd advise his family to avoid malls, planes, and trains. It's OK if you go, mind you, but not Joe's family. So much for projecting calm in a crisis.

Somehow, no matter what the state of the U.S. economy, the Michelle Obamas in and around the government will always manage to get their fancy French sneakers. I don't begrudge them that - but I do wish they acted as if they felt the same way about the rest of us.