President Ron Paul’s Likely Supreme Court Nominations

by Walter Block

Recently by Walter Block: Ron Paul Can Win in 2012

This essay 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.

First off, we must deal with some objections.

One objection 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 bearer.

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.

Okay, already. 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, here, here, here, here, here, here, here, here, here and 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.

Further, there 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.

Alright, alright 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.

Alex Kozinski is Chief 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.

Another good 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, here, here, here, here, here, here, here and 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.

Here, without 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.

Here, without 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.

Paul Aubert, 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.

Who knows, maybe one day some of them will be considered for the Supreme Court by a Rand Paul Administration.

Do foreigners 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:

Martin Fronek, 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.

My intention 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.

I thank Stephan Kinsella and Lew Rockwell for helpful comments on an earlier version of this essay.

June 22, 2011

Dr. 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 is The Privatization of Roads and Highways.

Copyright © 2011 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

The Best of Walter Block