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The Sotomayor Nomination Is another Yawner for Libertarians


As a libertarian, it’s hard for me to get all worked up over President Barack Obama’s nomination of Sonia Sotomayor to the Supreme Court, as conservatives and liberals are now doing. The only time I’d ever get excited about a Supreme Court nomination is if someone with a libertarian philosophy were nominated, such as Randy Barnett, Richard Epstein, or Andrew Napolitano. Heck, I’d also be excited over the nomination of what I would call principled liberals, such as Glenn Greenwald, Jonathan Turley, Joanne Mariner, and Joseph Margulies. Conservative Bruce Fein would be another great selection.

But a standard mainstream statist lawyer like Sotomayor? Yawn. Big deal.

Given a choice between a conservative and a liberal justice, my inclination has always been to favor the liberal, but with misgivings.

Ever since the Franklin Roosevelt administration, it has been a given that no liberal or conservative lawyer is ever going to uphold the concept of economic liberty. It is virtually impossible to find a liberal or conservative lawyer who believes that any welfare-state or regulatory program violates the Constitution.

But it’s also a given that conservative lawyers, by and large, hate the procedural protections in the Bill of Rights. They have long viewed them as nothing more than constitutional technicalities that let guilty people go free. In the ideal world of the conservative lawyer, the Fourth, Fifth, Sixth, and Eight Amendments would be repealed or ignored. That’s why conservatives love the Pentagon’s new criminal-justice system at Guantanamo — because the federal government is finally able to completely ignore the “technicalities” in the Bill of Rights. If conservatives had their way, all criminal cases — not just terrorism ones — would fall under the jurisdiction of the Pentagon’s new criminal-justice system.

Liberals, on the other hand, traditionally have had a deep devotion to civil liberties and the Bill of Rights.

So, given the fact that both conservative and liberal lawyers hate the concept of economic liberty, I’ve always felt that on balance the proponents of liberty are better off having justices who are going to at least defend civil liberties.

However, one big reason I have misgivings in favoring liberal lawyers over conservative ones, however, is that liberals are likely to be very bad on gun issues while conservatives are likely to be better. Liberal lawyers have the same attitude toward the Second Amendment that conservative lawyers have toward the Fourth, Fifth, Sixth, and Eighth Amendments — that it should simply be repealed or ignored.

Another reason for my misgiving relates to the issues of property rights, regulatory takings, and eminent domain. Conservatives lawyers are more likely to protect private property than liberal ones.

The fact of the matter is that the lovers of liberty — i.e., libertarians — are going to come out on the losing end of the appointment of either a liberal or conservative lawyer to the Supreme Court.

The interesting thing about the Sotomayor nomination is that the defenders of civil liberties might still come out on the losing end with this nomination. It would be natural to assume that because Sotomayor has been nominated by a liberal president, she must be pro-civil liberties. Not necessarily. For one thing, keep in mind that Obama has endorsed all the Bush administration’s infringements on civil liberties as part of the “war on terrorism.” Therefore, it’s quite possible that he has nominated someone who he feels will sustain such infringements when the issues reach the Supreme Court. Second, keep in mind that Sotomayor was initially nominated to the federal district court bench by a conservative president, George H.W. Bush.

My favorite justices in Supreme Court history were the following: Stephen J. Field, George Sutherland, Willis van Devanter, Pierce Butler, and James McReynolds. I like Field for his masterful dissent in the Slaughterhouse Cases, where he developed the concept of economic liberty, which would come to influence the direction of the Court into the early 20th century. Sutherland, van Devanter, Butler, and McReynolds were the four justices who were voting as a bloc to strike down FDR’s New Deal programs as unconstitutional. The four of them have gone down in judicial history as the Four Horsemen.

Not surprisingly, the Four Horsemen are reviled by statist law professors in statist law schools across the country. But their judicial reasoning in the various New Deal cases deserves careful study and reflection by every single American, including non-lawyers. Their approach was one of judicial activism, a concept that conservative lawyers today detest, but it was a principled activism, one by which they were not afraid to declare laws unconstitutional.

Here are some great judicial opinions by the Four Horsemen and Field:

Majority Opinion of Justice Sutherland in Adkins v. Children’s Hospital (1923)

Dissenting Opinion of Justice Sutherland in Home Building & Loan Assn. v. Blaisell

Dissenting Opinion of Justice McReynolds in the Gold Clause Cases (1935)

Dissenting Opinion of Justice Sutherland in West Coast Hotel v. Parrish (1936)

Dissenting Opinion of Stephen Field in the Slaughterhouse Cases (1873)

Finally, I would be remiss if I didn’t note that a U.S. Supreme Court justice doesn’t have to be a lawyer. My recommendation to Barack Obama: Scotch the Sotomayor nomination and nominate libertarian economist Walter E. Williams to the bench.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.