The Volokh Conspiracy

David,

You're clearly right: this administration has not been very interested in nominating libertarians to judgeships. It shouldn't be surprising, as the Administration is pretty hostile to libertarian principles generally. From the Bush-Cheney perspective, I think "libertarian = soft on terrorism + friendly to abortion and gays." Bad.

What's "Thomas(!)" mean? Is the exclamation point to show your support for his absurd, radical, and unAmerican view that American citizens can be detained on the unchallenged word of one man alone (so long as that man is a Republican, presumably)? If so, quite a libertarian there DB!

As has been said: Bush is not libertarian. He's the bad parts of conservatism (unexamined traditional values, pro-business) without the accompanying good parts (restriction on government's scope, pro-market).

Ahh, all the people who supported Bush, and demonized those of us who opposed him, running for the hills and pretending that Bush is not the face of conservatism and libertarian-conservatives (like Instapundit, DB, Adler, Somin, etc.). . . . Love to watch it. Reminds me of modern-communists who argue that Stalin, Mao, and Lenin were not true to communism. . . .

Reposted due to links:

First of all, GW is libertarian in his own way with his own sense of how to run government. E.g., New Freedom
Initiative, making all medical records electronic, directing the entire federal government to become electronically accessable — see estrategy.gov.

In sum, GW can truly be called our first global warming conscious President, having moved boldly forward to eliminate all that PAPER I was discussing on other threads about being a massive cause of global warming The Federalist Papers. (As compared to the paper-generating plant known as Florida Supreme Court, for example). GW is very cool.

But the call of the question was not about the President himself, rather it was about the Justices GW has appointed who, indeed, are also very cool and have significant libertarian sympathies of particular interest to those disabled people struggling for meaningful electronic access. See Doe v. County Center, PA, 242 F.3d 437 (3rd Cir. 2001) (Title II of the Americans With Disabilitieds Act) and Barbour v. Washington Metropolitan Area Transit Authority, No. 03-7044 (D.C. Cir. 2004) (Sec. 504, Rehabilitation Act of 1973). See also Goodman v. Georgia, 546 U.S. __ (2006) (unanimous) (Title II of the ADA).

I rest my case.

CrazyTrain,

Just so I get this straight, your view is that Bush really is an anti-government libertarian?

If you thought Bush wasn't the most awesome President on libertarian issues, boy, you're gonna love Giuliani.

I'm not sure what's so confusing. Because of the law of unintended consequences, it's often good to have things stay the same. Stable expectations aid in planning for the future. It's often hard to measure the transaction costs of actions one hasn't taken yet. That's the utility of stability.

There are traditions that ought to be changed or not applied because, when one looks at their costs and their benefits, they provide more of the former. There are others that are clearly beneficial. Finally, there are those that might be improved upon, but the improvement may be less than the costs of the change.

I think in most cases a wait-and-see attitude is appropriate, but I think the "traditional values" crowd Bush is part of is doing too much waiting and not enough seeing. That's what I meant by "unexamined" in my original comment.

We "social conservatives" don't oppose stem cell research (your example) out of "tradition," JB. If you want to boil everything down to a cost-benefit analysis, that's fine, but if you try to pidgeonhole things it just sounds nuts.

You're trying to dictate what someone else's cost/benefit analysis SHOULD be without sharing their values. It's not possible.

My suspicion as to why W. isn't appointing libertarian-leaning judges to the bench is that he is running most of the possible nominees past people like James Dobson for vetting.

After reading "Supreme Conflict," I have the very strong sense that Bush "decomplexifies" the nomination process by turning most of it over to folks from the conservative tail of the Federalist Society with marching orders to find judges who will "apply the law and not make it." Like many conservatives of that ilk, Bush seems to have an extraordinarily simplistic view of the Constitution according to which power-granting provisions are read as expansively as possible, while rights-granting provisions are read narrowly or simply ignored altogether. At least, that appears to be what Bush has in mind when he envisions a judge who will "apply the law" instead of "making it." Which explains why he was so enamored of Roberts, who I suspect will emerge as among the most pro-government/anti-libertarian justice of the modern era.

Simply put, if the price of a judiciary that will protect things conservatives claim to value, such as property rights and free markets, is the risk that those same judges will apply the underlying principles (limited government, freedom) in the social sphere -- well, that's just too high a price. Conservatives certainly don't want to win the culture war only to have that victory snatched from them by a bunch of freedom-loving judicial activists. Better to pick judges who recoil at the idea of ever telling the other branches of government they've gone too far, which is largely what Bush II has done with his nominations.

Is it just me or has the quality of comments dropped dramatically on these semi-political articles? Perhaps it's time to return to the days of no comments on all but purely legal posts (and blegs, of course)? The signal-to-noise ratio in here is near-zero.

I think Loki13 has hit nearest the mark so far. Nearly all of GWB's Presidency has been a post-9/11 Presidency, and he has taken great pains to maintain the primacy of the executive in foreign affairs/national security. It's only natural that he would primarily nominate judges that are favorable to that kind of view.

Incidentally, I think that may also be why this administration has seemed so intent of keeping the D.C. Circuit fully staffed, even, as Howard Bashman recently pointed out, he's only appoined one judge each to the 1st, 7th, and 11th, and the 4th continues to languish. Most of the major detainee cases are moving through the D.C. Circuit.

So, here's a question: are the individuals vetting judicial nominees less libertarian than they were in the '80s? Entirely possible, given that Lee Liberman Otis, who has some libertarian sympathies, had a lot of influence in the 80s, as I recall.

Also, why so few professors (who are also likely to be more libertarian)? Fear of paper trails? Has the judicial selection process become more of the traditional patronage plum, and less "let's make an intellectual transformation on the courts," as was the goal during the Reagan years?

So let's acknowledge that and move on to the question as to why two other nonlibertarian Republican presidents appointed conservatives with some libertarian sympathies, but W., it seems, has not.

Fewer academics nominated, for the most part.

Also the Democrats have been filibustering and rejecting judges, and the Democrats have shown that they're much more likely to filibuster or reject libertarian-leaning judges than straight conservatives. Reagan's most famously defeated judges were Ginsburg's nomination to the USSC, and Bernard Siegan's to the Ninth Circuit. Thomas of course had a lot of trouble, but we can perhaps keep him separate. Note that the libertarian Janice Rogers Brown and the (described by Jonathan Adler) "somewhat libertarian" Bill Pryor were also strongly opposed. Not so libertarian Roberts and Alito faced little opposition, by comparison.

So it seems pretty clear that nominating a libertarian judge sets one up for a big nomination fight, and maybe never getting a vote. Since the parties have been much more likely to oppose judges (and the tactics steadily escalating), that's another reason why fewer libertarians would be nominated.

Of course, the logic of opposition is complicated. It's also true that the Democrats seem much more likely to filibuster women and minorities nominated by Republicans as well.

This post seems to start from the premise that there is a large pool of libetarian leaning judge wannabes out there waiting on a judicial appointment. I suspect that libertarians represent a very small subset of the judiciary pool. Libertarians also are no more popular with the Democrats in the Senate than conservatives, so why waste energy promoting a libertarian if a conservative is available.

Note, I am not talking about "libertarians," I'm talking about conservatives with pronounced libertarian tendencies. Few if any of the judges I listed above would be best defined as "libertarians" as opposed to conservatives with substantial libertarian sympathies.

Bush I and especially Ronald Reagan appointed a fairly large number of conservative judges with some libertarian sympathies, many of whom had been law professors.

What are the objective criteria for determining whether a judge has “libertarian sympathies”?

What are the objective criteria for determining whether a judge has “libertarian sympathies”?

I'd start with judges who enjoy slapping the government around in their opinions. See, e.g., Posner's attack on Immigration Judges and the BIA; Jerry Smith's recent decision to extend the Fourth Amendment to non-citizens at the boarder; Kozinski's fabulous, "That's a nice system you got, what do you call it?"

Clinton made some terrible picks, but I disgree with JHA's assertion that he nominated relatively few academics. In addition to Adler's list, I can think of Calabresi, Katzmann, and Fletcher.

Of course, he had more to choose from, and I agree with
Houston Lawyer that the applicant pool is part of Bush's problem. There are few libertarians, and even fewer academics, that get spitting mad at Lawrence v. Texas.

As for David's question about why there have been fewer academics getting nominated, that seems pretty easy. First, Bush has a well-documented horror of getting Soutered, and I suspect he trusts his intuition/experience more than his intellect in that regard. So he tends to pick people with a demonstrated track record of thinking and acting like he does, and the best way to establish that track record is service in a conservative administration, preferably his. Second, I suspect Bush II has a relatively low regard for academics and suspects (perhaps correctly) that they are more likely to "go off the reservation" than people who have worked in government most of their lives.

I think it’s a little more basic than that. Academics in the legal profession are more likely to have a desire to create new law or try to exert an influence on how the law is shaped because it’s how their worth is measured in their profession. This almost by nature lends itself to having a more activist tendency on the court. There was a debate between Breyer and Scalia on the use of foreign law in death penalty for teenage gang member cases in which Breyer defended his citing of it in part by saying that he thought the Supreme Court should do what it could to increase the prestige of the courts in other countries by citing their decisions in its opinions. As if Supreme Court opinions are supposed to assume the role of an international law review.

Someone who actually had to work representing clients instead of working in an environment where your worth is measured by how often you’re published probably would take a more conservative view of what the role of the courts should be. That’s not always going to be the case (Scalia was also an academic and so have many of Bush’s appointees) but it may not be a bad barometer.

Maybe Timothy Tymkovich?

I also think it goes to Bush II's view of government. The other two were working in a different enviornment. Bush II is concerned only with ensuring the power of the executive and ensuring that the War on Terror/ post 9/11 security will not be harmed. Therefore, he only picks judges that he knows will protect executive authority and limit the judiciary. I'd argue a diminished judiciary with a strong executive directly conflicts with libertarian ideals.

Justin probably comes closest to how the appointments have been structured.But, there are a couple of other points:
How would the "sceeners" know of the "Libertarian tendencies?"
If obvious, they would also realize the difficulties of moving the nominations through the process.
So, if one is concerned to "fill" the system with bulwarks against the trends of the past (such as "liberala"), you take those who can "sail through."
Compromise? Yes. But compromise of principles. No.

MS,
What was yoyr:

Kozinski's fabulous, "That's a nice system you got, what do you call it?"

refering to?

MSimon: that was Kozinski's famous dissent in US v. Ramirez-Lopez which, although it lost, actually convinced the government to reverse its position. He writes a long imagined (and funny, though sad) dialog between the defendant and the defendant's attorney where the attorney explains how, despite the government screwing him, they were "really" protecting his rights. You should read the whole thing.