The Senate's passage of strict antibusing legislation has been headlined as ''big conservative victory.'' But do conservatives really want to be tarred with that brush? Certainly ''Mr. Conservative'' Goldwater does not, nor neoconservative Moynihan, not to mention moderate Republicans like Percy and moderate Democrats like Bumpers. They were among 37 senators who stood against a majority led by conservatives of the Helms variety.
Why would some conservatives, whatever their views on busing, not want to share in such a big victory? Because they see it as a defeat for the basic conservative tenet of preserving important national values; in this case, the constitutional separation of powers, including an independent judiciary.
For the Senate bill contains not only the House's antibusing limits on the Justice Department but what appears to be the severest restriction on the federal courts ever passed by either house. Unless the House continues to refuse to go along with this approach, it could bolster efforts to use a similar invasion of court jurisdiction in controversial matters such as school prayer and legal abortion. Such legislative erosion of the courts is evidently being resorted to as a way of doing with simple congressional majorities what would probably not be approved by the two-thirds - plus state ratification - necessary for constitutional amendments.
It is dangerous enough for Congress to encroach on the executive branch. Both houses would deny the Justice Department the option of enforcing the law through any legal action that could lead, directly or indirectly, to court-ordered busing. This may not affect the present Justice Department, which has abandoned the remedy of mandatory busing anyway. But no administration should be required by Congress to enforce desegregation law and then be cut off from what may be the only remaining tool for doing so when communities refuse other means of compliance.
By renouncing this remedy, while stressing its devotion to enforcing desegregation law, the Justice Department has the challenge and opportunity to prove that its proposed other approaches are effective:
Removing racial barriers to open access to public schools; prohibiting school officials from depriving any student, on the basis of race, from equal opportunity for education comparable in quality to others in the district; using such means as voluntary moves by students, magnet schools, teacher transfers, faculty incentives, adjustments in attendance zones, in-service training for teachers and administrators.
Means other than mandatory busing have achieved progress in many places. If they become sufficient to comply with the law everywhere, the remedy of transportation to achieve desegregation will fade away. But the courts should not be prohibited, as the Senate now says, from using this remedy when necessary. The new bill prohibits federal courts from requiring pupils to be transported more than five miles or 15 minutes from home. It also paves the way for reopening past cases.
The target is busing today. It could be something else tomorrow. Conservatives and all other Americans should be able to unite on preserving the courts from legislative hobbles.