Ron Paul’s Likely Supreme Court Nominations
by Walter Block: Ron
Paul Can Win in 2012
has been amended to include more than just a few names of libertarian
lawyers who were inadvertently left off the list compilations in
its initial publication. I thank all those who have responded to
the call for help I made in this regard in the first version of
this article, which appeared here.
Who will president
Ron Paul nominate for any Supreme Court vacancies that occur during
his first administration, 2012-2016?
Before we get
down to specifics, here are a few introductory remarks.
we must deal with some objections.
is that it is extremely unlikely that Dr. Paul will become president,
in the view of some. Why, then, waste time ruminating about his
Supreme Court appointments, when he will not ever be called upon
to make any such decisions. Yes, it is not likely that he will be
chosen by the Republican Party for a face-off with President Obama.
To win the Republication nomination may not be in the cards. However,
if he does, he has far more than a good chance of beating
Barack Obama next November. And, when this finally dawns on the
rank and file Republicans, he may well win the first round race
against Romney and company. So, who knows? If the congressman from
Texas can somehow utilize the fact that even nowadays
he does better in projected races against the incumbent than most
of his primary competition, he might yet become the Republican standard
Here is another
objection. According to Lew Rockwell, Ron Paul is of the opinion
that there is no mandate that a supreme court judge be a lawyer,
that clerks can supply needed technical knowledge, and that he would
like to see, say, an economist on the court. Despite this, there
is still a justification for the present essay. For one thing, Ron
Paul will certainly not exclude people from consideration
just because they chose to become lawyers. Thus, the lists compiled
below will still be of help to him, since he will undoubtedly want
to begin his search in the widest reasonable manner possible. Second,
I hate to say this, but the congressman from Texas is a politician.
That means, among other things, that he will have to compromise
from time to time. Now, of course, it is not within Dr. Paul’s DNA
to be deflected from libertarian principle. It is not for
nothing that he is known, near and wide, as "Dr. No."
But, there is nothing at all in the entire corpus of libertarian
law that would preclude him from selecting an attorney for this
purpose. Suppose that the congress will not support any of Ron’s
nominations to the Supreme Court who are not members of this profession.
Then, the next President of the United States, I imagine, will face
a stark choice: leave unfilled seats on the highest court in the
land, or, compromise, yes, compromise, with his stated openness
to appoint an economist. Under these conditions I will stake my
bottom dollar that our man will give way, and appoint a lawyer to
the bench, provided of course, he can find one, see below, who otherwise
fits the bill.
Here is a second
reason for seriously considering the scenario of Dr. Paul appointing
one or more Supreme Court Judges. Primary candidates are judged
by the electorate on the basis of many considerations. Foreign policy,
domestic programs, plans for the economy, views on civil liberties
and personal freedom, etc. But, surely, one of the criteria is,
wait for it, possible appointments to the Supreme Court of the United
States. If only for that reason it behooves us to consider his possible
choices in this regard.
A third justification
for our present deliberations is the sheer joy of doing so.
How many times in the entire history of the universe has it been
even a remote possibility that a libertarian president could actually
appoint libertarian judges to the Supreme Court? Would that Murray
Rothbard were alive on this day. He would have been jumping with
glee. If there is no other reason for contemplating this situation,
this one alone would surely suffice.
But there is
one more as well. It is important that we recognize libertarian
legal scholars, and that they become aware of one another, so as
to better and more efficiently promote liberty. Even if Ron Paul
were not a serious candidate for the presidency of the U.S., these
speculations would still be worthwhile on that account alone.
We have justified, or at least attempted to do so, this initiative.
How shall we now proceed with the specifics?
First, we shall
limit our considerations to those with a law degree. In my judgment,
there are indeed numerous scholars without this credential (foremost
among them at present, Hans Hoppe, and, surely, in the previous
generation, Murray Rothbard) who have made important contributions
to legal theory of the sort that Congressman Paul would appreciate.
However, we are already going pretty far out on the proverbial limb
merely to posit a Paul Administration (true confession, here; I
really like the sound of that), one that could actually accomplish
something important in the face of a congress to say the least,
is unlikely in the extreme to fully support him. (Although, when
he beats Obama, he will find that his coat tails have vastly expanded.)
Why risk total incredulity by supposing Ron to nominate someone
without a law degree, when there are many worthwhile candidates
with this credential?
What kind of
legal theorist is Congressman Paul likely to nominate for the Supreme
Court? Obviously, one who supports his limited government, private
property, economic and personal freedom, constitutional philosophy.
Right off the
bat this eliminates from consideration several lawyers who are conservatives,
not libertarians. For example, Richard Posner. Erudite, brilliant,
even, certainly vastly productive in term of his published output,
this economist-lawyer-philosopher is an enemy of private property
rights, not a supporter. We can also strike off our list Randy Barnett
who is, paradoxically, in many, many ways, a libertarian. He has
made numerous original contributions to our understanding of libertarian
law. However, Randy Barnett is a war-monger,
and that alone ought to remove him from consideration. Roger Pilon,
too, must be struck off the list. See on this here,
I hate to add yet one more person to the list of libertarians unlikely
in the extreme to be appointed by Ron Paul, well, for anything,
but we cannot ignore Ilya Somin; see here.
are several people who would otherwise qualify, but for their advanced
ages, or infirmities. Henry Manne and Gordon Tullock come to mind
in this regard. Both have law degrees, and have made signal contributions
to free market jurisprudence, on at least some issues. (I wish the
late Bernie Siegan were still alive; he would fit in well in this
category). However, surely, Ron would want to appoint a younger
man, someone in his forties or fifties, or even thirties, if he
could find someone with a strong track record at that early age.
already, we are all on pins and needles to find out not who Dr.
Paul will not nominate, but who he will. So, cough up some names
already, impatient readers will likely demand at this point.
My first nomination
is of course Andrew Napolitano. As an ex judge, surely he has an
inside track. I hesitate to mention him in this context because
I see him more as a Vice Presidential candidate than a potential
Supreme Court judge. But, if Dr. Paul chooses someone else for that
position, it is hard to imagine a better nomination than Andrew.
There is also a sitting judge, U.S. Federal District Court of New
Orleans, Martin Feldman, who is a personal friend of Judge Napolitano’s.
Marty, who on October 12, 1983 was appointed United States District
Judge for the Eastern District of Louisiana by President Reagan,
is justly famous for lifting
Pres. Obama’s deep water oil drilling ban in the Gulf Mexico. One
trouble with Judge Feldman for this purpose is that he is closer
to the end of his career than to the beginning of it.
Judge of the United
States Court of Appeals for the Ninth Circuit. His rulings have
at least a slight libertarian
bent. This makes him a natural for consideration. The only problem
with his candidacy is that he was born in 1950, and thus will be
62 years old when Ron Paul is sworn in as President of the U.S.
Not too old, surely, but, at least, on the borderline.
candidate is Richard Epstein. This long time University of Chicago
now NYU professor of law is widely respected in the field, even
by some on the other side of the aisle. I cannot bring myself to
agree with everything he has written, see here,
but I am sure that Congressman Paul will be a big tent enough president
to stretch all the way to the libertarianism of Richard Epstein.
In my own view, Epstein occupies ground near the border between
libertarianism and classical liberalism, just on the good side of
this line in the sand. Were he a solid libertarian, I would not
have written so much criticism of his publications.
My next suggestion
is a dark horse candidate as far as the legal profession is concerned.
He has fewer publications in prestigious law reviews than does the
man mentioned above. However, as far as the libertarian movement
is concerned, I regard Stephan Kinsella as our leading legal theoretician.
Whenever I am puzzled by any of the numerous arcane of libertarian
legal theory, it to Stephan that I first turn. He has elevated our
understanding of private property rights, punishment theory, and
his contributions to the issue of patents
and copyrights have been nothing short of magnificent.
I single out
one last person for particular mention because he is so young. Although
there are other legal scholars on my master list below who are as
youthful as Jacob Huebert, his accomplishments
at such a young age make him quite remarkable.
There are many
other worthwhile candidates for a Paul Administration to consider.
I list them in alphabetical order, below. All of them qualify under
the criteria I have set out. However, I myself am only a dabbler
when it comes to my understanding of this field. So, gentle reader,
I ask for your help. If I have inadvertently left out anyone who
belongs on this list (or less likely, have included anyone who should
not be on it), please let me know. I intend to make good any errors
of omission or commission I may have committed in the permanent
version of this essay that will remain on LewRockwell.com.
any further ado, is my stab at a comprehensive list of libertarian
legal theorists. For purposes of comprehensiveness, I include some
names I do not think would be good candidates.
any further ado, is my stab at a comprehensive list of libertarian
legal theorists. For purposes of comprehensiveness, I fear I inevitably
include some who would not be good candidates. It will be up to
President Paul's team to go over this list, and others like it,
with a fine tooth comb. Hopefully, this compilation will serve as
a good starting point for that process.
Daren Bakst, Randy Barnett, William Barnett II, Jeffrey Barr, Scott
Bauer, Joe Becker, Shana
Black, Clint Bolick, Don Boudreaux, Scott Bullock, Gary Chartier,
Carrie Ann Citren, Dick Clark, Mila Cobanov-Vecore, Jeff Deist,
John Denson, David Dieteman, Brad Edmonds, Richard Epstein, Marty
Feldman, Deanna Forbush French, Kurt Gerry, David Gruning, John
Hasnas, Jared Hausmann, Jule Herbert, Jacob Hornberger, Jacob Huebert,
Lee Iglody, Stephan Kinsella, Manuel S. Klausner, Thomas Lambert,
Bart Lee, George Leef, Glen Lenihan, Dan Levine, Robert Levy, Floy
Lilly, Geoffrey Manne, Henry Manne, David Mayer, Bob McGee, Todd
McMullan, William Mellor, Andrew Morriss, Andrew Napolitano, Nadia
Nedzel, Clark Neily, James Ostrowski, R. J. Peltz, Stewart Rhodes,
Roger Roots, Clay Rossi, Noah D. Rubins, Matt Saltzman, Butler Shaffer,
Norman Singleton, Brad Smith, Jeff Snyder, John Sotirakis, Maurice
Thompson, Patrick Tinsley, Gordon Tullock, Jim Viator, Marc Victor,
Eugene Volokh, Roy Whitehead, Joshua Wright.
Here are some
more names that have come to me in response to my queries; but I
am less sure of these than others: Jonathan Adler, J. Michael Altman,
Steve Bainbridge, Stuart Benjamin, Adam Clanton, Ronald Coffey,
George Dent, Eric Gookin, Gene Healy, Christine Hurt, Stavros Katsios,
Russell Korobkin, David Mayer, David Post, Glenn Reynolds, Ron Rychlak,
Sukrit Sabhlok, Emmanouil Savoidakis, Ilya Shapiro, Keith Sharfman,
Bill Sjostrom, Justin Skidmore, Brad Smith, Gordon Smith, R. Ben
Sperry, Maria Topakitzian, Fred Tung, Bryan Dean Wilson.
Here are the
names I am now adding, thanks to the responses of the first publication
of this essay: Janice Rogers Brown, Lloyd Cohen, Steven Eagle Robert
Fast, Bruce Fein, Kevin Gutzman (I had over a dozen letters objecting
to my not including this name in my first draft, way more than for
anyone else; so, this omission was by far my biggest error in the
previous version of this essay), Thomas Hazlett, Christopher Horner,
Sam Kazman, Michael Krauss, Jonathan R. Macey, Kevin A. McCabe,
Todd Ptak, Paul Sherman, W. Randall Stroud, Jonathan Turley, Edwin
Vieira, Jr., Patrick Wood, Todd Zywicki.
I am delighted
that many of our libertarian students at Loyola University New Orleans
went off to law school for their graduate education, since I arrived
there in 2001, and are now attorneys:
Max Chiz, Dreda
Culpepper, Tiffany Fleming, Jamie Ianelli, Emily Kott, Christie
LaPorte, Mike Lloyd, Joe Morrel, Michael O’Brian, Greg Rome, Brandon
Thibodeaux, Katherine Wingfield.
maybe one day some of them will be considered for the Supreme Court
by a Rand Paul Administration.
count? That is, may Ron nominate one of them to our Supreme Court?
I have no idea. But, if he can, here are some possibilities:
Remigijus Šimašius, Lithuania; Avril Allen, Walter Boytinck, Kelly
Connell, Derek From, Gary Mah, Andrei Mincov, Stephen Paine, Daniel
Roncani, Tom Ross, Chris Schafer, Karen Selick, Mike Sporer, Canada;
Frank van Dun, Belgium.
None of these
people have given me their names, or permission to use them in this
context. Many were gathered from questionnaires. If anyone objects
to having their name mentioned here, let me know and I shall delete
them in the subsequent version of this essay.
in listing these names is to be as inclusive as possible. I do so
based on the maxim that it is easier to erase names that do not
belong here, than to add those who do. I have purposefully erred,
if I have, in the direction of inclusiveness. Since I am not a lawyer
by profession, I am not as aware as I might be about the libertarian
qualifications of all the people I have mentioned. I shall leave
this for others to sort out. There are several people I have mentioned
who might not consider themselves libertarians. Their inclusion
is then my assessment, not theirs.
I have shamelessly
"stolen" some names from this very good list,
which gives details about some of the lawyers mentioned above. Dick
Clark, the compiler of this list, would be delighted to add qualified
people to his compilation. If you are interested, please get in
touch with him at: [email protected].
This list, too,
might be of interest. For a very different assessment of the Supreme
Court, see Stephan Kinsella’s comment on this article
from Reason. This
is a very important listing not of libertarian lawyers, but libertarian
professors. There is of course some overlap between the two. If
you are a libertarian professor, and not on this compilation, I
urge you to get your name included therein.
Stephan Kinsella and Lew Rockwell for helpful comments on an earlier
version of this essay.
Block [send him mail] is a
professor of economics at Loyola University New Orleans, and a senior
fellow of the Ludwig von Mises Institute. He is the author of Defending
the Undefendable and Labor
Economics From A Free Market Perspective. His latest book
Privatization of Roads and Highways.
© 2011 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.
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