Gary Johnson

3 Cheers for Gary Johnson's Supreme Court Short List

The Libertarian candidate picks several libertarian friendly legal minds.

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Reason

Libertarian presidential candidate Gary Johnson has said that if he's elected president his nominees to the U.S. Supreme Court will be people that are committed to following the text of the U.S. Constitution. Yesterday Johnson doubled down on that promise, releasing a list of six candidates that he says he would consider naming to SCOTUS if he wins the White House. "The Supreme Court should be guided by a loyalty to the original and fundamental principles of limited government and liberty embodied in the Constitution and the Bill of Rights," Johnson announced in a statement accompany the release of his list. "As president, when the opportunity arises, I will nominate justices who have proven records of demonstrating that loyalty to the Constitution."

Libertarians have good reason to be impressed by Johnson's list. Not only does it include Georgetown law professor Randy Barnett, a veteran combatant before the Supreme Court who also happens to be one of the most influential legal scholars at work today; the list also includes two of the most libertarian friendly judges now sitting on the federal bench. They are Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit and Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit.

Judge Kozinski is known for his principled defenses of the First Amendment, the Second Amendment, limited federal powers, and the due process rights of criminal defendants. "I disagree with the liberals on the bench half of the time," he told Reason in 2006, "and the conservatives the other half."

Judge Brown, meanwhile, is revered in libertarian legal circles for her stirring votes in defense of the Fourth Amendment against pro-police "orthodoxy" and in defense of economic liberty against "burdensome regulation" and "a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers." Judge Brown also has the honor—if you want to call it that—of having been denounced as a crazy libertarian by none other than Barack Obama. During Brown's 2005 Senate confirmation to the D.C. Circuit, then-Sen. Obama delivered a lengthy speech on the Senate floor opposing her and all that he thought she stood for. "One of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court," Obama said. Lochner, of course, refers to Lochner v. New York, the 1905 case in which the Supreme Court struck down a state regulation on the grounds that it did not serve a legitimate health or safety purpose and violated the constitutional rights secured by the 14th Amendment. There's no reason to be troubled by that.

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  1. Why didnt he announce this list months ago, when he needed to do something right?

    1. He didn’t have time, he was googling ‘Leppo’ and trying to remember what his nickname is.

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      3. “GarJay” ? “:GayJo”?…”GayJay” That’s it !

    2. He was too busy trying to establish SJW & Lefty cred to attract BernieBros and BernieBabes.

      4-D chess, amirite?

      1. He learned it from the Reason staff.

  2. Im suprised that Eugene Volokh didnt get a nod. Maybe its because hes foreign born?

  3. But unfortunately, Gary’s not getting anyway near the Whitehouse. Instead what we’re going to get is a couple of far, far left judges who will rubber stamp anything the executive wants.

    1. Were Trump’s SCOTUS picks leftards or are you referring to Hilary?

      1. Of course I’m referring to Hillary. She’s inevitable! And anyway, it’s her turn. Trumputin picks are all members of the KGB. Get the memo already, duh!

    2. Hey, it is not out of the realm of possibility that he could score tickets to go on a White House tour and when Weld is named to a Hillary Cabinet post he might toss some sympathy passes to a state dinner Gary’s way

      1. I seriously doubt that Weld is enough of a neocon to be appointed to anything by Hillary. She’ll probably make a Bush SOS.

        1. Maybe she promised Weld an ambassadorship to Lichtenstein or something. He’ll get to pretend he’s important while earning a nice paycheck.

        2. Maybe some minor, inconsequential post. Nothing to do with foreign policy. Whatever the most useless cabinet position is. It’s hard to pick one since they’re all pretty useless when it comes right down to it.

  4. His running mate added a name to the list. Someone he vouches for.

  5. Here’s my list:

    Andrew Napolitano

    Rand Paul

    Justin Amash

    Thomas Massie

    Me

    What? Most of them have no judicial experience? Reviving a popular pre-cell phone snark ‘Here’s a quarter, call someone who cares’.

    Here’s my short list of arguments on anything that makes it to the court.

    No, fuck you, cut spending.

    No, fuck you, cut spending.

    No, fuck you, cut spending.

  6. OT: I heard a Hillary Clinton ad on the radio this morning. Some former CIA guy endorsing Clinton because Trump is too flakey and erratic to allow near nuclear weapons. The ad also featured Trump’s, “We’ll bomb the shit out of them”, with “shit” censored.

    I think some folks consider Trump’s “We’ll bomb the shit of them” to be a good idea. I was always reminded of the anti-Goldwater mushroom cloud ad.

    1. I was always reminded of the anti-Goldwater mushroom cloud ad.

      In your guts you know he’s nuts!

      I’m actually kind of surprised they haven’t dusted that one off.

  7. Justice Willett, man!

    1. How did your interview go? Did you get an offer? Did you win a kewpie doll? Do I get to send you a broad of shoulder, strong of arm, husky, bald, UKR man named Kostja as a reward?

      1. I am giving my notice today!!!!!

        And yes on Kostja!!!!!

      2. Reminds me of Fiddler on the Roof and Lazar Wolf for some odd reason.

    2. Trump shortlisted Willet

  8. Nice picks.

    If only he applied the same judgement in picking his running mate.

    1. As soon as the Weld pick came in and I saw GayJay giddily talking about how he was worried he wouldn’t get Weld as VP pick and how that would have hurt his chance of winning, I knew I wasn’t voting for Gary. The mere fact he thought Weld a great pick and that he actually had a chance of being president was enough for me. It just turned out to be way more of a disaster than I thought it would.

  9. I can put together a list of fantasy justices too.

    I have about as much chance of them facing Senate confirmation hearings as Gary’s.

  10. This must mean Weld is loudly chastising the Senate for not approving Merrick six months ago.

    1. BURN!

  11. If the wrong person becomes president, there will only be one seat to fill. Unless more justices die. They aren’t going to quit while the wrong person is in the White House.

    1. Isn’t the prune face one about 150 years old now?

    2. Isn’t it a foregone conclusion at this point that the wrong person will be President?

      1. I’m just wondering if Trump wins if he’ll just step aside and give it to Pence? Or does he really want to play President instead of hosting another reality TV show? Maybe he’ll do a reality show as the President. If he does that, he should give Biden and Bill Clinton frequent guest appearances.

        1. Pence and/or White House staff will be the de facto leaders. I don’t think Trump will give up the title, unless it proves too troublesome for his business ventures.

  12. Here’s my short list of arguments on anything that makes it to the court.

    No, fuck you, cut spending.

    No, fuck you, cut spending.

    No, fuck you, cut spending.

    To which I would only add, “Why is this the responsibility of the government?”

    1. Yeah, but now you’re saying something sensible. I just want to troll them and cause any bullshit being pulled by the executive to go down in flames.

  13. No love for Judge Wapner?

  14. I am giving my notice today!!!!!

    I eagerly await the “Suspicious Powder in Envelope” stories on the evening news.

    1. That right there, that’s the stuff, Brooksie. Caused me to spill my soda all over the place laughing so hard. You owe me a new computer monitor and keyboard. And a set of scrubs.

  15. That’s a pretty good list, even though we all know damn well GayJay doesn’t have the first clue about any of them.

  16. Can one of our legal minds here explain to me why Lochner is so widely dismissed? I could be misunderstanding, but if the courts are supposed to take a deferential stance vis-a-vis the legislature & executive, the entire history of modern judicial activism is nothing more than an intellectual hash and the courts wildly exceeded their authority in Brown v. Board of Ed., Roe v. Wade, or Obergefell v. Hodges. The fact that the Lochner applied the same reasoning to “economic” liberty strikes me as utterly irrelevant.

    Anyone have any clarification?

    1. The more you study constitutional law, the less you see of any consistently applied principle beyond FYTW. One of my professors of constitutional law asked us to consider the question of whether there is any law going on at all.

    2. Bad consequences. And there’s nothing in the constitution about due process for economic rights. Sure, there’s nothing about privacy either, but come on, it’s basically implied… and look at precedent and stuff…

      That was the most I could get when I took a history of conlaw class.

      1. And there’s nothing in the constitution about due process for economic rights.

        But, is there anything in the Constitution about due process for any particular category of rights?

    3. >the courts are supposed to take a deferential stance

      This is not usually applied without qualifiers. And, “deferential” doesn’t mean “the government is always right.”

      But, if you are going to criticize Lochner criticism, perhaps you can explain the criticism of those other opinions? People like Randy Barnett, e.g., support Lawrence v. Texas AND economic liberty cases. Sounds like what others are doing — selectively talking about “wildly” exceeding authority based on what to some appears to be policy choices.

      >applied the same reasoning to “economic” liberty strikes me as utterly irrelevant.

      It’s not merely economic liberty — various things given more scrutiny today involves economic choices, such as buying contraceptives or the like. The line is more that regulation of public matters like hours at bakeries tend to be more legitimate matters of regulation & yes that economic policy generally often tends to be something the government has more discretion over than let’s say who you marry or the race of public school children.

      It’s notable too that Justice John Harlan, who honored economic liberty in various cases, dissented in Lochner. I think his opinion is more important to read than Justice Holmes’ who gets the most attention. It suggests that even respecting economic liberty, this is a matter of sound legislative policy. Second guessing it is inappropriate.

      1. What is the material difference between regulations on the sale of contraceptives and other regulations on the manner of doing business?

        None, except for the inventions of the courts. Lochner and Griswold rest on the same premises, that it is the court’s job to countermand the legislature when the judges disagree with the legislation.

  17. There’s no reason to be troubled by that.

    Sure there is, if you believe regulatory oversight to be the lifeblood of the economy.

  18. It’s always fun to pretend.

  19. And who will he nominate for Queen of the Blue Fairies?

  20. I seriously doubt that Weld is enough of a neocon to be appointed to anything by Hillary. She’ll probably make a Bush SOS.

    I think a Rockefeller Republican limousine liberal like Weld would have a shot at HHS. Because empathy.

  21. Hillary is bleeding support by the minute. RCP avg, right now, Hillary + 1.7. Trump is now ahead in Ohio, Florida, North Carolina, Nevada, and Arizona. If this keeps going like this, I think that only PA will save Hillary.

    1. If this keeps going like this, I think that only PA will save Hillary.

      Which is why the Dems are shitting kittens over the transit strike in Phili. It would be the height of irony if a pubsec union’s strike ends up costing Hillary the election. I’m already salivating at the thought of all the sweet, sweet tears of unfathomable sadness.

  22. The more you study constitutional law, the less you see of any consistently applied principle beyond FYTW.

    Just click your heels together three times, and say, “The Court is apolitical.”

    All will become clear.

    1. The Court is apolitical and completely ignores the Overton window. It is known.

  23. You owe me a new computer monitor and keyboard. And a set of scrubs.

    The check is in the mail.

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