Asymmetrical Information

I take it you meant Justice Posner and Judge Epstein. When you say you like the sound of that, what do you mean? They're miles apart philosophically. Posner has economic-libertarian policy views, but judicially he's a Holmesian pragmatist who would pretty much let the legislature do what it wanted. Epstein is more of a principled libertarian who would impose pretty radical limits on government power if he could.

Sounds like a terrific idea. Another thing to consider as well is that once someone is on the bench (even as a recess appointment), I think it probably becomes a lot harder politically to refuse to confirm someone who is already doing the job.

Chris wrote:

I take it you meant Justice Posner and Judge Epstein. When you say you like the sound of that, what do you mean? They're miles apart philosophically. Posner has economic-libertarian policy views, but judicially he's a Holmesian pragmatist who would pretty much let the legislature do what it wanted. Epstein is more of a principled libertarian who would impose pretty radical limits on government power if he could.

That does I think raise a larger question for those of us on the Right when it comes to judicial nominees. Which (in general) is better?

a) a jurist who actively attempts to limit the power of the federal and State governments from the bench

b) a jurist who believes that federalism is the greatest guarantor of individual liberty and kicks most issues back to the States even if it means that some States will have sodomy laws, prayer in school, allow/ban/limit abortion, capital punishment, etc. and others will not?

I tend to thing a conservative/libertarian jurist ought to take a "doctrine of enumeration" approach to the federal government in that it may only have those powers granted to it by the federal Constitution in Article I Section 8 (which includes those of "fair inference" to carry out those enumerated powers as Hamilton argued). Dividing political power, even if means some States will have stupid laws is I think a lot safer then having a "one size fits all" standard imposed by the federal government (they can't even handle "equal protection under the law" correctly having replaced Jim Crow with affirmative action) because you can always move to a different or better State a lot easier than you can move to a different or better nation (not that I'm conceding there is one).

Just my $0.02.

Chris wrote:

I take it you meant Justice Posner and Judge Epstein. When you say you like the sound of that, what do you mean? They're miles apart philosophically. Posner has economic-libertarian policy views, but judicially he's a Holmesian pragmatist who would pretty much let the legislature do what it wanted. Epstein is more of a principled libertarian who would impose pretty radical limits on government power if he could.

That does I think raise a larger question for those of us on the Right when it comes to judicial nominees. Which (in general) is better?

a) a jurist who actively attempts to limit the power of the federal and State governments from the bench

b) a jurist who believes that federalism is the greatest guarantor of individual liberty and kicks most issues back to the States even if it means that some States will have sodomy laws, prayer in school, allow/ban/limit abortion, capital punishment, etc. and others will not?

I tend to thing a conservative/libertarian jurist ought to take a "doctrine of enumeration" approach to the federal government in that it may only have those powers granted to it by the federal Constitution in Article I Section 8 (which includes those of "fair inference" to carry out those enumerated powers as Hamilton argued). Dividing political power, even if means some States will have stupid laws is I think a lot safer then having a "one size fits all" standard imposed by the federal government (they can't even handle "equal protection under the law" correctly having replaced Jim Crow with affirmative action) because you can always move to a different or better State a lot easier than you can move to a different or better nation (not that I'm conceding there is one).

Just my $0.02.

When you say you like the sound of that, what do you mean? They're miles apart philosophically. Posner has economic-libertarian policy views, but judicially he's a Holmesian pragmatist who would pretty much let the legislature do what it wanted. Epstein is more of a principled libertarian who would impose pretty radical limits on government power if he could.

That's very well put. Speaking as a lefty, I'm not sure that I'd object very strongly (if at all) to promoting Posner or to putting Epstein on the bench. I'd add that I also think highly of Judges Easterbrook and Kozinski.

If you polled American law professors on who the finest sitting jurist in America is, Posner would be the likely winner by a large margin, notwithstanding the leftward tilt of American law faculties. Leftish academic Martha Nussbaum wrote a book which is in part a tribute to Posner's judicial writing.

And it is far from clear that Epstein would enact his academic proposals by judicial decree if he woke up tomorrow as a judge. It is part of the nature of legal academics to take positions entirely at odds with current law; those positions may not predict how they would rule from the bench. If I were arguing a regulatory takings case before Judge Epstein -- i.e., a case in which a plaintiff argues that a regulation amounts to a government taking of his property, and seeks compensation -- I'd guess he would be slightly more predisposed to find a taking than other judges, but in appropriate cases I could certainly see him writing that under applicable precedents, he is constrained from finding that any taking occurred.

I would also note that Epstein is thought of very highly by many leftish law school faculty members notwithstanding their political disagreements. His torts casebook is very popular across the political spectrum.

That having been said, I would say that the primary virtue of the persons mentioned above is that they all have reputations as independent thinkers, and think less of politics than of their own judgments. Miguel Estrada, Priscilla Owen and Bill Pryor appear to be, first and foremost, party loyalists. IIRC, Sidney Blumenthal went to law school, but I think appointing him to a judgeship would be a rotten idea.

Thorley writes:

I tend to thing a conservative/libertarian jurist ought to take a "doctrine of enumeration" approach to the federal government ...

I would point out the following:

1. The rule of stare decisis -- that wherever possible, new decisions must be consistent with previously decided precedents -- is deeply embedded in American jurisprudence. The English legal writers Coke and Blackstone both discuss the rule; the formal legal education of many founders consisted in large part of reading those authors. Both the Federalists (see No. 78, Hamilton) and the Anti-Federalists (see Federal Farmer No. 3) make reference to the rule. To my knowledge, no American judge takes the position that he or she is not bound by precedent in rendering decisions.

2. At present, there are more than 500 volumes of Supreme Court decisions, each containing numerous decisions interpreting the Constitution. There are thousands of volumes of decisions of inferior federal courts and of state courts, many of which interpret the Constitution. That enormous body of precedent does not adhere to a "doctrine of enumeration" and in many significant respects conflicts with the doctrine you describe.

3. Accordingly, it would be impossible for a judge to adhere to the rule of stare decisis while at the same time applying a "doctrine of enumeration" in deciding cases.

All that is not to say that you can't argue that a "doctrine of enumeration" would be a good thing, but the exercise would be largely academic. It would be like arguing that baseball ought to be played like cricket, because cricket is a better game. You may be right, but hiring umpires who agree with you is not the solution: it is not possible at this point to move incrementally from baseball to cricket by enforcing the rules of baseball in a more cricket-y way. The only solution is to convince people that they should stop playing baseball and start playing cricket; in the legal world, that would mean a comprehensive constitutional reform.

If by "doctrine of enumeration" you mean "doctrine of enumerated powers"--i.e. the idea that Congress has only the powers enumerated in Article I and cannot enact anything not somehow justified by a power on that list--then alkali's point is stated a bit too broadly I think.

The courts have never ceased adhering to the doctrine of enumerated powers at least ostensibly, they've just given an extremely broad reading to the scope of what's within the Commerce Clause. The Rehnquist Court has already managed to start whittling away at this broad scope, and now even liberals like Reinhardt are starting to run with that ball where it suits them (as in his Ninth Circuit opinion striking down the kiddie porn law). Justice Ginsberg has suggested that some federal drug laws might be vulnerable on that score as well. Ideally you'd want libertarian judges to accelerate this rollback as far as possible. Frankly, I'm not at all sure Posner or Easterbrook would be inclined to do so. They seem to really think that there's no discernible principle there that justifies overruling most legislative decisions that something is within its power.

Epstein would be more inclined to give a reading to the Commerce Clause that didn't reduce the 10th amendment to a dead letter. You're surely right, though, that stare decisis and political reality are both major brakes on the extent to which even a libertarian dream judge would be likely to reel Congressional power under the Commerce Clause. Depending on how you decided to draw the line, you could easily wind up invalidating most of the post-1937 welfare state. Which would amount at this point to a huge structural change that--however right in principle--probably can't be forced on the country by judicial fiat alone without engendering a real political/constitutional crisis. It would be interesting to see how Epstein would deal with this.

CMN writes:

The courts have never ceased adhering to the doctrine of enumerated powers at least ostensibly, they've just given an extremely broad reading to the scope of what's within the Commerce Clause. The Rehnquist Court has already managed to start whittling away at this broad scope, and now even liberals like Reinhardt are starting to run with that ball where it suits them ... Ideally you'd want libertarian judges to accelerate this rollback as far as possible.

Point taken, but I think the amount of running room here is limited unless the Supreme Court wants to get into the business of overruling precedent. Lopez was a sitting duck; the federal statute at issue there was a naked exercise of police power with no Congressional attempt to link the statute to interstate commerce. Arguably, there was no "whittling away" in that case; Rehnquist took some pains to contend that the result was consistent with recent precedents ("But even these modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits.").

Frankly, I'm not at all sure Posner or Easterbrook would be inclined to do so. They seem to really think that there's no discernible principle there that justifies overruling most legislative decisions that something is within its power.

Hard to tell. Posner and Easterbrook have only had a couple of occasions to speak to Lopez issues and in each case the result was pretty clearly dictated by precedent.

This kind of discussion is why this blog has comments. Alkali -- "enforcing the laws of baseball in a more cricket-y way"? Tee-hee. Is that where the rest of the team wanders out of the dugout for a beer while the batter argues with the pitcher?

I am a plaintiffs' lawyer who used to work in the Seventh Circuit. I would not have a problem with either one of those guys. They are both indelligent, thoughtful, and even-handed. These are such rare qualities, and any judge which is intelligent and open-minded is fine with me, regardless of his academic philosophy.

The only thing that I don't like about Posner is his writing style. He basically just dictates his opinions in an off-the-cuff manner, and it shows. They are a pain to read. The content is brilliant, but I wish he'd edit his opinions a little more to make them easier to work with. Same goes for Easterbrook, another excellent judge.

Hard to tell. Posner and Easterbrook have only had a couple of occasions to speak to Lopez issues and in each case the result was pretty clearly dictated by precedent.

I was at a Federalist Society conference a few years back where Easterbrook was on a panel and pretty much stated the view I've attributed to him--that textually there's nothing in the Constitution giving judges power to decide that something is or is not "commerce." I vividly remember Roger Pilon from CATO indignantly telling him his philosophy on this score was indistinguisable from that of Larry Tribe. (Fighting words if ever there were any...) I'll let someone else speak to Tricky Ricky, as off the top of my head I can't think of anything specific to cite to back up my general impression of his likely approach.

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