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Why Kavanaugh Matters to Libertarians

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I get why conservatives are ecstatic that the U.S. Senate has confirmed President Trump’s nominee, Brett Kavanaugh, to the Supreme Court. Conservatives prevailed in getting one of their own onto the Court. For a Republican or conservative statist, that’s obviously cause for celebration.

For me, not at all. I couldn’t care less whether a conservative statist gets appointed to the U.S. Supreme Court or a liberal statist. As a libertarian, it’s all the same to me.

You see, conservatives and liberals play this game in which they pretend that they’re different from one another. They have these great big, knock-down, drag-out fights acting like there are some sort of giant philosophical differences between the two of them. They are only fooling themselves.

There isn’t a dime’s worth of difference between a liberal and conservative, a Democrat or a Republican. They are all cut out of the same ideological and philosophical cloth. They are all statist to the core. That’s what makes them different from us libertarians.

Consider the joint devotion that both liberals and conservatives have to the welfare-warfare state way of life that they jointly have foisted onto the American people. Both liberals and conservatives are firmly committed to such socialist, interventionist, and imperialist programs as Social Security, Medicare, Medicaid, farm subsidies, agricultural grants, education grants, public schooling, drug laws, immigration controls, foreign aid, trade restrictions, sanctions, assassination, torture, military tribunals, denial of due process, indefinite incarceration, foreign interventionism, gun regulations, the military-industrial-congressional complex, the CIA, the NSA, mass surveillance, wars of aggression, FISA courts, asset forfeiture, foreign military bases, coups, conscription, economic regulations, the Federal Reserve, paper (i.e., fiat) money, inflation, occupational licensure, Homeland Security, the TSA, HUD, the Department of Labor, ICE, coups, the SBA, income taxation, the IRS, and ….

Well, do you get my drift? Liberals and conservatives, Republicans and Democrats, are statist to the core. They favor everything that we libertarians oppose.

That’s because we libertarians stand for liberty, private property, free markets, and limited government. That’s why we oppose all of those statist programs listed above.That’s what makes us libertarians. It’s what makes us different from statists, both liberal statists and conservative statists.

A question naturally arises: If Democrats and Republicans are all the same, why do they spend so much time fighting against each other. The answer is because they are fighting over control of their welfare-warfare state and the largess that come with it. They compete against each other for that control and largess. They are one big party — the Statist Party — that is divided into two wings — the Democrat wing and the Republican wing, just like the NFL is divided into two conferences, the National Football Conference and the American Football Conference. One league, two conferences competing against each other. One party, two sub-parties competing against each other. In fact, that’s why it’s so easy for conservative-liberal people like Michael Bloomberg to switch back and forth between the Democrat and Republican wings of the Statist Party.

As a libertarian, I couldn’t care less which statist wins an election. For me, a conservative statist is no different from a liberal statist. Sure, a conservative might say to me, “Jacob, the conservative candidate will reduce regulations.” That might well be true, but given that he’s also going to be torturing or assassinating people or putting them into jail for ingesting the wrong substances and killing countless people overseas, it’s hard for me to get excited about supporting him.

By the same token, the liberal statist might say to me, “Jacob, the liberal candidate will reduce asset forfeiture, which would mean that drug cops won’t be able to steal as much money from people.” That might well be true, but given that he is going to be plundering and looting people through the IRS and the Federal Reserve to fund his beloved welfare-warfare programs, it’s hard to get excited about supporting him.

Look at the big U.S. Senate race in Texas. The mainstream press is all gaga-gaga over this monumental fight between a Republican, Ted Cruz, and a Democrat, Beto O’Roark. Democrats and Republicans have convinced themselves that the two candidates have fundamental philosophical differences. That’s ridiculous. They are both the same in a fundamental sense — that is, the sense that asks: What should be the role of government in a society? They might disagree on the details — like one of them favors a complete government takeover of healthcare while the other one wants simply to keep Medicare and Medicaid intact — but they both agree on the welfare-warfare role for government in a society.

Big deal. Sure, exciting for them and other conservative and liberal statists, but not for me. It’s boring to me and it’s irrelevant to me as to who wins.

It’s no different with nominees to the U.S. Supreme Court. They are either conservatives or liberals. Big deal. They are both going to be statist to the core. Why should I get excited one way or another about whether it is conservative statist who has been nominated or a liberal one?

Now, I can see why liberals and conservatives would get all excited over whether a conservative statist or a liberal statist should be appointed to the Supreme Court. And I can see why conservatives are jumping up and down over Brett Kavanaugh’s appointment to the Supreme Court. When you get one of your fellow statists appointed to the Supreme Court, that’s obviously cause for celebration because it might well mean more control and more largess for conservative statists.

But me? Count me out. The issue of which statist, conservative or liberal, gets appointed to the Supreme Court is just as mundane as your standard political race between a Depublican and a Remocrat, I’m sorry, I mean a Republican and a Democrat.

Some conservatives are saying things like “You libertarians should support Kavanaugh because he opposes the Kelo decision.” My answer: Whoop dee doo! Like I’m really going to get all excited because Kavanaugh might be an anti-Kelo man who supports torture, assassination, mass surveillance, the national-security state, the welfare state, the regulated economy, the drug war, the war on immigrants, and all the other statist things that conservative and liberals agree on.

By the same token, a liberal statist might say, “You libertarians should support a liberal candidate to the Supreme Court because he favors reducing mandatory-minimum sentences in the drug war.” My answer: Whoop dee doo! Like I’m going get all excited about a mandatory-minimum reformer who supports torture, assassination, mass surveillance, the national-security state, the welfare state, the regulated economy, the drug war, the war on immigrants, and all the other statist things that conservative and liberals agree on.

Nope, count me out of those kind of fights. I will gladly leave them to the statists. As a libertarian, they hold no interest for me whatsoever.

Now, what if a president were suddenly to nominate a libertarian lawyer to the Supreme Court, like Judge Andrew Napolitano. Then, you would have my undivided attention and you could count on me to weigh in on that particular nomination.

I confess that I still don’t get the notion that conservatives are promoting that holds that Christine Ford, the CIA, and the FBI were involved in a conspiracy together to block the Kavanaugh nomination, a conspiracy that necessarily would have had to begin many years before Kavanaugh was even nominated, since Ford told several people of the sexual assault prior to President Trump’s even getting elected. What befuddles me is why the CIA and the FBI would want to conspire with a leftist Democrat to block the appointment of a man who worked in the torture-surveillance-invasion regime of Republican George W. Bush (whose father had served as CIA director!) and who could reasonably be expected to support and ratify anything and everything that the CIA, the NSA, the Pentagon, the FBI, and the rest of the national-security establishment might do, presumably in the CIA’s and FBI’s hope of getting a leftist lawyer appointed to the Court instead. Please pardon my libertarian obtuseness but that particular conservative conspiracy theory makes absolutely no sense to me, and, as far as I know, not even Donald Trump is promoting it.

So, why then have I jumped into the Kavanaugh controversy?

Well, up to the time of the hearing in which Christine Blasey Ford and Brett Kavanaugh testified, I had no intention of doing so. In fact, anyone who searches my articles at fff.org will discover that up to that hearing, I had written nothing on the Kavanaugh nomination. I had taken no stand, one way or another, on his nomination. For that matter, I also didn’t take a stand on President Obama’s nomination to the Court, Merrick Garland.

Why? Because neither appointment mattered to me. I just didn’t care about either one. Like I say, I don’t care which statist, conservative or liberal, gets appointed to the U.S. Supreme Court. To me, they are all the same. Why should I care which one of them gets appointed to the Supreme Court?

But the situation changed radically with that confirmation hearing. That’s because at the conclusion of the hearing, it was clear that there was sufficient evidence to warrant an investigation into whether Kavanaugh, who was a lawyer and a federal judge, had committed perjury in the course of his confirmation hearing, either with his sworn denial of having committed the assault, or related side issues, or both.

The question naturally arises: Why should perjury matter to a libertarian? Some people might say that perjury is just not that big of a deal and should not be an obstacle to someone serving on the Supreme Court. That’s obviously not my position and I don’t think it should be the position of any other libertarian. Perjury should be critically important to libertarians, especially libertarians who support limited government. (Whether they realize it or not, it’s also an important issue for “anarcho-capitalists” because each owner of a private court would have to decide whether permitting perjury would be a good policy in his private court.)

Since I am a limited-government libertarian, that naturally raises a question: What does “limited government” mean? Generally, when we use that term we are referring to three essential functions of government: to defend the nation from a foreign military invasion; to punish murderers, rapists, thieves, and others who initiate force or fraud against others; and to provide a forum by which people can resolve their disputes.

Now, it’s theoretically possible to just leave that position as is, but it’s not very satisfying. The question follows: What should a libertarian judicial system look like? What should be its principles? When the government goes after people on criminal violations, do we want there to be a presumption of innocence or a presumption of guilt? Should there be the right of trial by jury or should everyone be tried by tribunal? Should people have the right to counsel or should they be required to represent themselves? Should the state be authorized to force confessions out of people or should people be free to remain silent? Should law-enforcement officials be authorized to search for criminal activity wherever they want or should they be required to secure a judge-issued warrant based on probable cause? Should there be due process of law or not? Should there be torture or should cruel and unusual punishments be prohibited?

It’s easy to take civil liberties for granted but we shouldn’t. They are not found in the legal systems in many other countries. (Examples: Egypt and Saudi Arabia, two favorite dictatorial regimes of both liberals and conservatives, to which they send millions of U.S. taxpayer dollars and weaponry.) And civil liberties are certainly not found in the Pentagon-CIA’s “judicial” system in Cuba (which is something else that conservatives and liberals agree on).

I believe it is incumbent on us libertarians to stand for and support civil liberties when it comes to a judicial system. These procedural protections against the federal government stretch back centuries as part of the resistance by British citizens against the tyranny of their own government. In fact, the term “due process of law” goes all the way back to Magna Carta in 1215, when the barons of English forced their king, at the point of a sword, to acknowledge that his power over them was limited rather than omnipotent.

Civil liberties are essential to a proper functioning judiciary under a libertarian limited-government system. But that’s not all. So is an honest and upright judiciary and judicial system.

In many Third World countries, bribery of judges is standard fare. If you want a favorable ruling, all it takes is money. If you’re able to offer enough money or outbid the other side, you win. It might be a civil action in which you are able to recover a much larger amount from your opponent. It might be a criminal action in which a murderer is able to buy his freedom.

Either way, no one is safe and free under that type of government, even if it is perfectly limited in a libertarian sense. If murderers can buy their way out of prison, that will not be free society because people with money will be empowered to murder others. If litigants can buy favorable verdicts, no one’s property is safe from judicially approved confiscation and redistribution. A genuinely free society necessarily depends on a honest and upright judicial system.

It is no different with perjury, which is false testimony under oath. If perjury in a judicial system is no big deal and is explicitly or implicitly permitted or condoned, then it becomes easy for the state to take away people’s freedom and property. All that a cop has to do is take the witness stand, swear that he saw you commit the murder, and you’re gone. The same for civil suits that involve money damages. Cops, litigants, and witnesses have to know that if they perjure themselves and get caught, they are going to pay a very high price. A free society necessarily depends on the importance of truth and honesty in judicial proceedings.

That’s not to say, of course, that this is a sufficient prerequisite for a free society. It isn’t. But it is an necessary prerequisite for a free society.

Let me give you an example of this principle. In his book The Constitution of Liberty, Friedrich Hayek explains the principle of the “rule of law.” Contrary to popular opinion, the rule of law doesn’t mean that people have to obey the law. Instead it means that the government is required to establish rules in society in advance before it can punish anyone. People have the right to know what the rules are so that they can know what they can do without being punished for it.

For example, suppose there are no drug laws but President Trump believes that drugs are bad for people. He orders federal agents to begin arresting and incarcerating people who are caught using drugs. That would be a violation of the rule of law because there has to be a law that criminalizes drug use before the government can punish a person for drug use.

Does that mean then that the rule of law is a sufficient prerequisite for a free society? Of course not because we libertarians know that a free society is one with no drug laws at all. Thus, as Hayek points out, while the rule of law is a necessary prerequisite to a free society, it is not a sufficient prerequisite.

It’s no different with laws against perjury or bribery of public officials or such procedural guarantee as due process, trial by jury, and right to confront witnesses. They are all necessary prerequisites for a free society but clearly not sufficient prerequisites. Even with those protections in place, if a society has the type of welfare-state, warfare-state society which liberals and conservatives have foisted upon our land, then there in no way that such a society can genuinely be considered free.

Whether one uses an evidentiary standard of probable cause or reasonable suspicion, there was more than sufficient evidence to warrant a full investigation into whether Brett Kavanaugh lied under oath at his confirmation hearing. If he did commit perjury, then he should not have been confirmed as an associate justice on the U.S. Supreme Court. We’ve got enough lying going on in the legislative, executive, and national-security branches of the federal government. We don’t need to make the situation worse by making lawyers who have committed perjury judges and justices in our federal judicial system.

Mind you, I’m not saying that Kavanaugh definitely did commit perjury. I’ve never said that. I’ve also never said that his confirmation should be denied. What I’ve said is (1) that there was sufficient evidence to warrant a full investigation into whether he in fact did commit perjury, either with his sworn denial of having committed the sexual assault, or related side issues, or both; (2) that it was incumbent on the U.S. Senate to conduct the investigation as part of its constitutional responsibility to determine, on our behalf, whether Kavanaugh should in fact be hired for the job he was seeking; and (3) that if the Senate then concluded that he did in fact lie under oath at his confirmation hearing, his confirmation to the Supreme Court should have have denied.

That investigation was never held, either by the U.S. Senate or by President Trump’s sham FBI background-check “investigation.” In their rush to dutifully line up in support of Trump’s demand for a quick confirmation vote that would preclude such an investigation, most of the Republican members of the U.S. Senate abrogated their responsibility to us, the American people, who are their bosses, and in the process sacrificed their individual judgment, integrity, responsibility, and conscience, to the applause and cheering of conservative and Republican statists across the land.

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.