To progressive pundits, the withdrawal of Harriet Miers and nomination of Samuel Alito for associate justice of the Supreme Court represent the triumph of "conservatism." In the progressive worldview, "conservatism" implies a monolithic social and religious fundamentalism at odds with fundamental constitutional rights. So, when these pundits label Judge Alito a "conservative," they conjure up the image of a dangerous theocratic regime.
There are two crucial errors in this thinking. First, there is no monolithic conservative perspective; and, second, judicial conservatism is different from political conservatism and is itself a term of multiple meanings. The failure of progressives to understand the heterogeneity of American political and judicial conservatism and tendency to conflate the two terms are leading them to potentially major errors in analysis and prediction.
In the conservative world, there are libertarians, fiscal conservatives, and social and religious conservatives, among others.
Libertarian and fiscal conservatives both distrust government, but for different reasons. Libertarians tend to favor individual rights of choice in abortion, education, and gender orientation. Fiscal conservatives focus on the loss of liberty and waste associated with high taxes and extensive government involvement in the economy and society. Both favor a broad interpretation of constitutional rights to protect personal and property rights, and support strict anti-discrimination laws and a strong, independent judiciary to balance executive and legislative authority.
Social and religious conservatives emphasize the importance of strong families, religious institutions, and communities as the basis of a stable and resilient society. They oppose gay marriage and abortion rights, favor religious language and symbolism in the public discourse, and support neutral government funding of religious institutions performing social services.
Conservatism is, in sum, a heterogeneous, non-monolithic enterprise (not unlike progressivism!).
Thus, a political conservative might support a broad reading of constitutional rights of free speech, privacy, property, and gay rights-or a political conservative might support a denial of gay and abortion rights. Just calling someone a conservative is not a good predictor of where that person stands on those issues.
And political conservatism does not equate to judicial conservatism, a judicial philosophy favoring a limited role of the courts and deference to democratically elected institutions. Both political liberals, such as Justice Felix Frankfurter, and political conservatives, such as Justice Sandra Day O'Connor, can be judicial conservatives. …