Wednesday, June 22, 2011

Not a bad idea...

President Ron Paul’s Likely Supreme Court Nominations

by Walter Block

Who will president Ron Paul nominate for any Supreme Court vacancies that occur during his first administration, 2012-2016?

Before we get down to specifics, here are a few introductory remarks.

First off, we must deal with some objections.

One objection is that it is extremely unlikely that Dr. Paul will become president, in the view of some. Why, then, waste time ruminating about his Supreme Court appointments, when he will not ever be called upon to make any such decisions. Yes, it is not likely that he will be chosen by the Republican Party for a face-off with President Obama. To win the Republication nomination may not be in the cards. However, if he does, he has far more than a good chance of beating Barack Obama next November. And, when this finally dawns on the rank and file Republicans, he may well win the first round race against Romney and company. So, who knows? If the congressman from Texas can somehow utilize the fact that even nowadays he does better in projected races against the incumbent than most of his primary competition, he might yet become the Republican standard bearer.

Here is another objection. According to Lew Rockwell, Ron Paul is of the opinion that there is no mandate that a supreme court judge be a lawyer, that clerks can supply needed technical knowledge, and that he would like to see, say, an economist on the court. Despite this, there is still a justification for the present essay. For one thing, Ron Paul will certainly not exclude people from consideration just because they chose to become lawyers. Thus, the lists compiled below will still be of help to him, since he will undoubtedly want to begin his search in the widest reasonable manner possible. Second, I hate to say this, but the congressman from Texas is a politician. That means, among other things, that he will have to compromise from time to time. Now, of course, it is not within Dr. Paul’s DNA to be deflected from libertarian principle. It is not for nothing that he is known, near and wide, as "Dr. No." But, there is nothing at all in the entire corpus of libertarian law that would preclude him from selecting an attorney for this purpose. Suppose that the congress will not support any of Ron’s nominations to the Supreme Court who are not members of this profession. Then, the next President of the United States, I imagine, will face a stark choice: leave unfilled seats on the highest court in the land, or, compromise, yes, compromise, with his stated openness to appoint an economist. Under these conditions I will stake my bottom dollar that our man will give way, and appoint a lawyer to the bench, provided of course, he can find one, see below, who otherwise fits the bill.

Here is a second reason for seriously considering the scenario of Dr. Paul appointing one or more Supreme Court Judges. Primary candidates are judged by the electorate on the basis of many considerations. Foreign policy, domestic programs, plans for the economy, views on civil liberties and personal freedom, etc. But, surely, one of the criteria is, wait for it, possible appointments to the Supreme Court of the United States. If only for that reason it behooves us to consider his possible choices in this regard.

A third justification for our present deliberations is the sheer joy of doing so. How many times in the entire history of the universe has it been even a remote possibility that a libertarian president could actually appoint libertarian judges to the Supreme Court? Would that Murray Rothbard were alive on this day. He would have been jumping with glee. If there is no other reason for contemplating this situation, this one alone would surely suffice.

But there is one more as well. It is important that we recognize libertarian legal scholars, and that they become aware of one another, so as to better and more efficiently promote liberty. Even if Ron Paul were not a serious candidate for the presidency of the U.S., these speculations would still be worthwhile on that account alone.

Okay, already. We have justified, or at least attempted to do so, this initiative. How shall we now proceed with the specifics?

First, we shall limit our considerations to those with a law degree. In my judgment, there are indeed numerous scholars without this credential (foremost among them at present, Hans Hoppe, and, surely, in the previous generation, Murray Rothbard) who have made important contributions to legal theory of the sort that Congressman Paul would appreciate. However, we are already going pretty far out on the proverbial limb merely to posit a Paul Administration (true confession, here; I really like the sound of that), one that could actually accomplish something important in the face of a congress to say the least, is unlikely in the extreme to fully support him. (Although, when he beats Obama, he will find that his coat tails have vastly expanded.) Why risk total incredulity by supposing Ron to nominate someone without a law degree, when there are many worthwhile candidates with this credential?

What kind of legal theorist is Congressman Paul likely to nominate for the Supreme Court? Obviously, one who supports his limited government, private property, economic and personal freedom, constitutional philosophy.

Right off the bat this eliminates from consideration several lawyers who are conservatives, not libertarians. For example, Richard Posner. Erudite, brilliant, even, certainly vastly productive in term of his published output, this economist-lawyer-philosopher is an enemy of private property rights, not a supporter. We can also strike off our list Randy Barnett who is, paradoxically, in many, many ways, a libertarian. He has made numerous original contributions to our understanding of libertarian law. However, Randy Barnett is a war-monger, and that alone ought to remove him from consideration. Roger Pilon, too, must be struck off the list. See on this here, here, here, here, here, here, here, here, here, here and here.

Further, there are several people who would otherwise qualify, but for their advanced ages, or infirmities. Henry Manne and Gordon Tullock come to mind in this regard. Both have law degrees, and have made signal contributions to free market jurisprudence, on at least some issues. (I wish the late Bernie Siegan were still alive; he would fit in well in this category). However, surely, Ron would want to appoint a younger man, someone in his forties or fifties, or even thirties, if he could find someone with a strong track record at that early age.

Alright, alright already, we are all on pins and needles to find out not who Dr. Paul will not nominate, but who he will. So, cough up some names already, impatient readers will likely demand at this point.

My first nomination is of course Andrew Napolitano. As an ex judge, surely he has an inside track. I hesitate to mention him in this context because I see him more as a Vice Presidential candidate than a potential Supreme Court judge. But, if Dr. Paul chooses someone else for that position, it is hard to imagine a better nomination than Andrew. There is also a sitting judge, U.S. Federal District Court of New Orleans, Martin Feldman, who is a personal friend of Judge Napolitano’s. Marty, who on October 12, 1983 was appointed United States District Judge for the Eastern District of Louisiana by President Reagan, is justly famous for lifting Pres. Obama’s deep water oil drilling ban in the Gulf Mexico. One trouble with Judge Feldman for this purpose is that he is closer to the end of his career than to the beginning of it.

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