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Trump and the crisis of conservative liberalism

FILE - in this May 27, 2016 file photo, Republican presidential candidate Donald Trump speaks at a rally in Fresno, Calif. Trump says he made "a lot of money" in a deal years ago with Moammar Gadhafi, despite suggesting at the time he had no idea the form
FILE - in this May 27, 2016 file photo, Republican presidential candidate Donald Trump speaks at a rally in Fresno, Calif. Trump says he made "a lot of money" in a deal years ago with Moammar Gadhafi, despite suggesting at the time he had no idea the former Libyan dictator was involved in renting his suburban New York estate. (AP Photo/Chris Carlson, File)
Chris Carlson, AP

Trump University is accused of fraud. Hearing the case is U.S. district Judge Curiel, an American born in Indiana. Trump objects because Curiel’s parents were Mexican immigrants. But does it matter who his parents were?

Of course not: this is the only possible American response. The whole point of America is supposed to be the individual’s freedom from inherited classifications or identities. Americans hold that all human beings are created equal and should be treated equally under fair and equal laws. Americans expect the fair rule of law in a republic, or liberal democracy, that is, a system of majority rule tempered by respect for individual rights. We expect American Republicans and American Democrats alike to be loyal to the democratic rule of law.

The conservative National Review and liberal National Public Radio agree that Judge Curiel’s Mexican ancestry should be considered irrelevant. Ian Tuttle, writing at the National Review, points out that “Trump has implied that no law can be interpreted disinterestedly and applied dispassionately. There’s really no such thing as reason; there are only inescapable tribal prejudices. … What follows from that is the effective end of the Anglo-Saxon legal tradition.” Nina Totenberg of National Public Radio agrees: she notes that Trump’s lawyers have not ventured to ask the judge to recuse himself, “because court precedents are unanimous in holding that race, ethnicity, gender, religion and sexual orientation are not themselves grounds for disqualifying a judge. If they were, legal ethicists observe, the legal system would fall into chaos because no judge would be free from taint.”

So that settles that, for true Americans loyal to a democratic republic. Equality under the law, the core of traditional liberalism, is what conservatives want to conserve.

But wait, who really believes anymore in this naïve, supposedly color-blind notion of the fair and rational rule of law? We have just spent a weekend celebrating the life of Mohammed Ali, who bravely refused service in the U.S. military because the war in Vietnam was a racist country’s racist war. Ali mellowed as he matured, leaving aside the “white devil” rhetoric of the Nation of Islam that he had proclaimed as late as 1974, but he never really repudiated the idea that Black Pride required rejection of the hypocritical institutions of white America. And our celebration of Ali shows that the critique of America as inherently racist is no longer radical but mainstream.

American “fairness” is in fact now defined, at least in the academic and media mainstream, not by the ideal of the impartial rule of law, but by the clamor for representation by an ever-longer list of particular identities, racial, ethnic, and sexual. On this new “liberal” view, the original sin of American racism requires counter-racism, apparently forever.

The Journal of American Greatness (JAG) is a very intelligent pro-Trump website. (I know, I had thought that was an oxymoron, too.) The author “Decius” there notes that “when Sonia Sotomayor said that being a ‘wise Latina’ influences her decisions for the better, that — we were told — was … a sign of her judicial temperament and fitness for the High Court. When Trump says being a Latino will influence this judge’s hearing of his case, he’s Hitler. … The left mostly takes for granted, first, that people from certain ethnicities in positions of power will be liberal Democrats and, second, that they will use that power in the interests of their party and co-ethnics… [The Left assumes] that this identity-based predictability is necessary, because the institutions and laws as designed will not reliably produce the “correct” outcome. … We need people who will look past the niceties of the rule of law and toward the outcome — the end. The best way to ensure that is ‘diversity,’ i.e., people more loyal to their own party and tribe than to abstractions like the rule of law. …Trump is taking for granted — because he is not blind—that ethnic Democratic judges will rule in the interests of their party and of their ethnic bloc. That's what they’re supposed to do. The MSM and the overall narrative say this is just fine. It’s only bad when someone like Trump points it out in a negative way.”

JAG favors Trump’s counter-counter racism, his reactionary attack on “liberal” “diversity,” over Hillary Clinton’s aggressive and unscrupulous leftism. Decius makes a reasoned, if chilling, case, but this case can’t be called “conservative.”

Trumperie is a visceral response to the overthrow of traditional liberalism in the name of “diversity.” It is a symptom of the crisis of American conservatism. Conservatism is in crisis because few still believe in the rational and color-blind rule of law — because there is not enough genuine American liberalism left to conserve.

Ralph Hancock is a professor of political science at Brigham Young University and president of the John Adams Center for the Study of Faith, Philosophy and Public Affairs. His opinions do not necessarily reflect those of BYU.