Should Libertarians Vote Romney to Prevent Obama from Packing the Supreme Court?


Writing at Point of Law, Ted Frank argues that libertarians should act like single issue voters this November and cast their ballots for Republican Mitt Romney solely in order to prevent President Barack Obama from making any more appointments to the U.S. Supreme Court. Here's the heart of Frank's case:

Justices Kennedy and Scalia are in their late 70s, and both are the critical fifth vote on tremendously important libertarian principles:

*There are four justices on the Supreme Court ready to hold that the First Amendment does not bar Congress from regulating political speech against incumbents.

*There are four justices on the Supreme Court ready to hold that the Second Amendment does not create any individual rights against the government.

*There are four justices on the Supreme Court ready to hold that the Commerce Clause creates no constraint on Congress's regulatory powers.

*There are likely at least four justices on the Supreme Court ready to hold that the government can choose to discriminate on the basis of race if "diversity" is at issue.

These are strong points. On the other hand, as I argued back in August, Romney's selection of former federal appeals court Judge Robert Bork to head up his campaign's judicial advisory committee doesn't exactly bode well from a libertarian legal perspective. Bork represents the era of conservative legal thought where judicial deference to the will of elected majorities was the primary concern, a position that does not line up with the vigorous judicial protection of individual rights spelled out in Frank's post.

Frank is not persuaded by that concern, however, arguing that "Bork is a figurehead" who "is not going to be deeply involved in policy-making or judicial selection." Maybe so. But keep in mind that Romney's campaign website still lists Chief Justice John Roberts as an example of the sort of justice that Romney will nominate. While it's true that Roberts has cast votes in favor of gun rights and free speech, his controversial majority decision upholding Obamacare is precisely the sort of judicial deference to lawmakers that Bork has long championed.

As I've noted before, the conservative legal movement has a longstanding division over the issue of judicial restraint, with libertarian legal scholars and activists favoring a far more aggressive use of judicial power in defense of individual rights than Borkian conservatives do. By pointing would-be voters towards the examples of Bork and Roberts, the Romney campaign has not signaled much sympathy for the libertarian legal position.