Combs Spouts Off

It’s been a busy week, and I haven’t dropped by Liberty Corner lately. So I just saw the Monday post endorsing Janice Rogers Brown, Bush’s nominee for the D.C. Circuit Court. It points to a column in the National Journal in which Stuart Taylor Jr. views her nomination with alarm. The pull quote near the top of the column reads "California jurist Janice Rogers Brown embraces a radical libertarian brand of judicial activism." Taylor then cites some opinions Brown has expressed and concludes that they:

… show Brown to be a passionate advocate of a radical, anti-regulatory vision of judicially enforced property rights far more absolute than can be squared with the Supreme Court precedents with which judges are supposed to comply.

What frightens Taylor is that Brown doesn’t adhere to the orthodox view of the "infamous" 1905 Lochner decision:

Some background: What lawyers call "Lochnerism" was the basis for dozens of decisions striking down minimum-wage, maximum-hours, and other worker-protection laws as infringing "freedom of contract" — a right that, as Bork has put it, can be found "nowhere in the Constitution." Almost all modern constitutional scholars have rejected Lochnerism as "the quintessence of judicial usurpation of power," in Bork’s words.

Indeed, leading conservatives — including Justice Antonin Scalia, Sen. Orrin Hatch, R-Utah, and former Attorney General Edwin Meese, as well as Bork, together with some liberal advocates of judicial restraint — have long condemned Lochner …

Set aside for the moment the question of where one finds "liberal advocates of judicial restraint."

But in an April 2000 speech , Brown declared that … the post-1936 Supreme Court has yielded to "a kind of underground collectivist mentality" in rejecting Lochnerism and upholding New Deal programs.
… 
After she had studied "our early history," Brown added, "it slowly dawned on me that the problem may not be judicial activism." Rather, she said, the problem was the courts’ unwillingness since 1937 to enforce a broad, Lochneresque vision of property rights based less on the explicit text of the Constitution than on "natural law."

It’s not judicial activism to note that the authors of the Constitution were attempting to create a government based on Lockean principles and the doctrine of natural rights, that they believed that the Constitution recognized, rather than established, rights, and that they viewed the rights of property ownership and contract as fundamental. Brown gets it (emphasis added):

In San Remo Hotel v. San Francisco, in 2002, for example, the majority upheld an affordable-housing law’s requirement in that city that owners pay a fee to demolish or change the use of residential hotels. In dissent, Brown wrote that "property ownership is the essential prerequisite of liberty" and that the city had engaged in "theft" and "turn[ed] a democracy into a kleptocracy." Criticizing the Supreme Court’s "labyrinthine and compartmentalized" case law on the Constitution’s requirement of "just compensation" for governmental "takings" of private property, she called for a new "conceptual approach" that would invalidate laws redistributing wealth from one group to another. She also cited with approval a 1985 book, Takings: Private Property and the Power of Eminent Domain. The author, Richard Epstein, has said that his theory would "invalidate much … 20th-century legislation."

Janice Rogers Brown has to be the best judicial nomination since Douglas Ginsburg. I agree wholeheartedly with Thomas at Liberty Corner: I hope she’s confirmed to the Circuit Court immediately and moved up to the Supreme Court ASAP.

This nomination alone should be enough to motivate all libertarians and libertarian conservatives to push the Senate for up-or-down voted on the Bush nominees. But, do me a favor – when you contact your Senators on Brown’s behalf, don’t tell them exactly why you’re such a fan. 🙂

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