Libertarian Presidential Candidate Jo Jorgensen Releases "Liberty-Minded" SCOTUS Short List

Judge Willett, Eugene Volokh, Randy Barnett, and others make the cut.

|The Volokh Conspiracy |

Dr. Jo Jorgensen, the Libertarian Party candidate for the presidency, has released a SCOTUS list of "liberty-minded jurists." You will see many familiar names on the list:

Richard Epstein is a law professor and director of the Classical Liberal Institute at New York University. A study published in The Journal of Legal Studies identified him as the 12th most often-cited legal scholar of the 20th century.  He is known for his prolific writings on subjects pertaining to law, economics, classical liberalism, and libertarianism.

Judge Andrew Napolitano was a New Jersey Superior Court judge and hosted the daily TV talk show Freedom Watch on Fox Business News. He is a syndicated columnist published in ReasonThe Washington Times and elsewhere and is a frequent commentator and news analyst on Fox.

Randy Barnett is on the faculty of the Georgetown University Law Center and a senior fellow at Cato Institute. His eleven published books include Restoring the Lost Constitution: The Presumption of Liberty. He was involved in the legal challenge to Obamacare — National Federation of Independent Businesses v. Sebelius.

Clint Bolick is an associate justice on the Arizona Supreme Court. In 1991 Bolick co-founded the Institute for Justice. In 2007, he became VP of Litigation at the Goldwater Institute where he was a frequent critic of Sheriff Joe Arpaio.

Eugene Volokh has been a UCLA law professor since 1994 and is the originator of the prominent legal blog, the Volokh Conspiracy. He clerked for Judge Alex Kozinski on the 9th Circuit and for Supreme Court Justice Sandra Day O'Connor.

Janice Rogers Brown served as Circuit Judge for the U.S. Court of Appeals for the District of Columbia Circuit and was an associate justice of the California Supreme Court. In a speech to the University of Chicago Law School Federalist Society she said, "Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies."

Dana Berliner is the senior vice president and litigation director at the Institute for Justice. She was co-counsel representing the homeowner in Kelo v. New London, the notorious case where SCOTUS ruled that eminent domain could be used by a city for the sole reason of increasing its property tax base.

Anastasia Boden is a senior attorney at Pacific Legal Foundation specializing in litigating against anti-competitive licensing laws and laws that restrict freedom of speech. She graduated from law school at Georgetown where she was Research Assistant to Professor Randy Barnett.

Timothy Sandefur is the vice president for litigation at the Goldwater Institute and an adjunct scholar at the Cato Institute. He's the author of numerous books including Frederick Douglas: Self Made Man and The Right to Earn a Living. He argued against Obamacare before the U.S. Supreme Court.

Scott Bullock is President and General Counsel of the Institute for Justice. He was co-counsel in Kelo v. New London.

James Ostrowski has practiced trial and appellate work for more than 35 years. He was an attorney for Ron Paul and is the chief organizer of libertymovement.org. He writes extensively on a variety of topics for the Mises Institute and has published four books, including Progressivism: a Primer on the Idea Destroying America.

Alan Gura was co-counsel for the plaintiff in District of Columbia v. Heller, which upheld the individual right to own a firearm. It was one of two landmark constitutional cases that he argued successfully before the U.S. Supreme Court. The National Law Journal named him one of the "100 Most Influential Lawyers in America."

Jonathan Turley teaches torts, criminal procedure and constitutional law at George Washington University Law School. He is ranked the 38th most cited public intellectual in a study by Judge Richard Posner. He received the columnist of the year award from the Aspen Institute and The Week for his columns on civil liberties.

Damien Schiff is a senior attorney at Pacific Law Foundation where he successfully argued the precedent-setting property rights case, Sackett v. Environmental Protection Agency when he was 33 years old. He was nominated to the Court of Federal Claims but not confirmed.

Clark Neily was co-counsel for the plaintiff in District of Columbia v. Heller, which upheld the individual right to bear arms. He was a senior attorney at the Institute for Justice before joining the Cato Institute in 2017, where he is Vice President for Criminal Justice overseeing civil asset forfeiture, police accountability, gun rights, overcriminalization and constitutional law.

Alan Dershowitz became the youngest full professor in the history of Harvard Law School at the age of 28. He successfully defended Harry Reems, the actor in Deep Throat, arguing that consumption of pornography was not harmful. He served as defense counsel in numerous high-profile cases, including one against Julian Assange.

Nadine Strossen was the youngest person ever to head the ACLU. She is a staunch First Amendment advocate and a founder of Feminists for Free Expression. Among her books is "Hate: Why We Should Resist It with Free Speech, Not Censorship".

Jacob Hornberger was Director of Programs for the Foundation for Economic Education and founded the Future of Freedom Foundation where he serves as president  He placed second in the delegate count for the 2020 LP nomination for president.

Don Willett serves on the U.S. Fifth Circuit Court of Appeals and was previously a member of the Supreme Court of Texas. According to the outlet SCOTUSblog, "Willett views the role of judges as protecting individual liberty by striking down laws that infringe on it." Willett has also been named by President Donald Trump as a potential Supreme Court nominee.

Judge Willett may be the only person on the short list of two presidential candidates. Your move Biden.

NEXT: On Election Year Supreme Court Vacancies (Redux)

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. It isn’t a bad list, but please strike Strossen from it.

    “Putting all that aside, I don’t want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn’t necessarily mean that it is a fundamental civil liberty.”

    Not an attitude you want on the Supreme court. She’d make a great pick for a Democrat, probably no hope for that given her respect for freedom of speech, but nobody who actually values ALL civil liberties should propose her for the Court. We already have enough Justices treating the Bill of Rights like a Chinese menu.

  2. Sorry you didn’t make the list, Josh.

  3. This list must be a joke.

  4. Willett and Volokh – I’d support those!!!

    1. I agree, but neither would have a chance in confirmation. Remember that, right now, the democrats want desperately to delay the process to get past the election.

      Prof. Volokh’s use of racial epithets–even in accurately quoting them from other sources–would suddenly become a charge that he is racist. Plus, you’d hear cries over how he clerked for Kozinski, so we know he must also secretly be a misogynist. [FTR – I very much doubt either claim is true, but that’s never stopped these sorts of attacks.]

      Judge Willett had a hard time through confirmation to the Fifth Circuit because of jokes he made on Twitter. He stopped using Twitter after that (a real loss). We’d go through that entire fight all over again, with even greater pearl clutching than before.

  5. Dershowitz confirmation hearings is all I want for Christmas.

    1. Well, he’d certainly give as good as he got, that much is certain;l It would be entertaining, at least.

      He’s got the same problem as Strossen, and Epstein, though: He rationalizes away any civil liberties he doesn’t like. If this were next year, and Biden were nominating any of them, I’d think, “Well, that could have been worse.”

      But having a Libertarian candidate endorse them for the Supreme court demonstrates that she’s not really looking for potential justices who’d stand up for the whole Bill of Rights. That list should have been several names shorter, or at least different.

      1. Yeah, 100% agree. Sigh.

    2. I’d dump Dershowitz for Somin. Otherwise not a bad list at all.

    3. Dershowitz would have Orgy Island problems,

      He wouldn’t take it, but Harvey Silverglate would be a much better choice.

    4. Napolitano’s would be fun too.

  6. Eugene should not be proud to be on this list.

    1. I’ll grant you that being put in the same company as Epstein isn’t a compliment. But most of the names on it are pretty good. If anything, I’d say I’d trust my rights more with several of them than with Eugene.

  7. Nice Job Professor Volohk!

    Next, the Armchair Lawyer should be put on the short list!

  8. I was going to say that in this election the Libertarian Party can only draw votes from Biden, but this list sure seems like a real attempt to prove me wrong. Half these people are too nutty even for Trump.

    1. They almost had me going until I got to Turley. Then when I saw Dersh I knew they were screwing with us. It’s what you have to love about the LP; they’ve never seen a joke that goes too far.

  9. This list is certainly eclectic. I think it would be fair to say that each of them would make a very different justice, with very different reasoning and outcomes, than the others.

    Which does not say much for libertarianism. If your philosophy produces a list of nominees with such a wild variation, then your philosophy is eccentric, or even downright wacky.

    Put it this way. You’d likely get a more coherent list if you limited it to candidates who prefer vanilla ice cream over chocolate.

  10. Libertarians nominating famed pedophile lawyer Alan Dershowitz for the Supreme Court is a bit too on the nose, I’d say

    1. The whole LP is performance art.

  11. One thing I’d like to ask Eugene during a confirmation hearing is how he squares his libertarianism with his desire to mandate forced cake baking.

    1. He’s written about it on here a decent amount.

  12. This isn’t a serious list, especially with Trump sycophant Turley on it.

    I’d rather see some career defense attorneys, especially those who’ve worked as public defenders on a list of SCOTUS nominees, as well as for other judgeships.

    1. “I’d rather see some career defense attorneys”

      What would you call Alan Dershowitz?

      “especially those who’ve worked as public defenders”

      Well, he claimed to use the fees from his rich clients to subsidize representation of his poor clients.

  13. Something about this list makes it seem like it was an attempt to pander to as many different groups as possible in a quest to siphon off some votes. Definitely no ideological consistency to it and some of the choices were enough to make me think twice about voting for her.

    1. That sounds about right. It’s a mixed bag, and some of those names should never appear on a Libertarian’s short list.

      Trump outsourced judicial selection to the Federalist Society, and it seems to have worked out well. Maybe the LP should outsource it to the Cato Institute.

      1. Cato Institute is the Koch Bros. No.

  14. I know you think you’re smart so hopefully you can understand this:
    You. Are. A. Fucking. Idiot.

  15. Oh hey, Judge Willett’s Q&A from 2017 is available online.

    Dude’s an asshole.

  16. That list is amazing.

  17. I’ve seen Napolitano repeatedly on tv. The remarks he spews out on the law are regularly so idiotic it is hard to believe he actually attended law school

    1. Napolitano seems to have been taken down by Trump Derangement. I recall hearing him pre-Trump, and he usually made good sense. But some form of dementia has overcome him.

      1. I really love the genre of comment that goes, “I used to think so-and-so was really smart and had good ideas, but then he criticized Trump, so he has changed.”

        It couldn’t be that criticism of Trump is the intelligent (not to mention moral) position to take, and that it’s people who support Trump who are unhinged. No, it’s that all the formerly smart conservatives have gotten dumb/deranged.

  18. All Ivy indoctrinated grads should be excluded. They are bookworms who do not know anything. They have all been indoctrinated into promoting big government, run by a failed elite, namely, Ivy indoctrinated grads.

    These schools should be defunded. Their grads should be purged from all responsible positions.

    See Scalia, an ultra-conservative. He led the charge to get rid of sentencing guidelines. These had dropped crime by 40%. After doing that, crime surged, especially the murders of minority, young males.

    1. “See Scalia, an ultra-conservative. He led the charge to get rid of sentencing guidelines. These had dropped crime by 40%. After doing that, crime surged, especially the murders of minority, young males.”

      1. The vast majority of criminal prosecutions are brought in state court (well over 95%, IIRC), not federal court. Apprendi, Booker, and Blakely (the “charge to get rid of sentencing guidelines”) have nothing to do with state court.

      2. There is no evidence that sentencing guidelines in federal court have had any deterrent effect on crime rates.

      3. There is no evidence that there is any temporal relationship between the “trilogy” of cases and crime rates, which continued their downward trajectory after the cases.

      4. Most studies show that departures from the guidelines occur rarely, and federal judges are hesitant to deviate from them. Far from being an outlet for discretion and mercy, they are seldom used.

      In sum, that’s a load of BS.

  19. “Willett views the role of judges as protecting individual liberty by striking down laws that infringe on it.”

    Really? None of those namby-pamby DUI laws, or speed limits.

    1. Really? None of those namby-pamby DUI laws, or speed limits.

      You think there’s some sort of right to speed/drive drunk on public thoroughfares?

      1. What I think is that speed limits infringe on individual liberty, but that they are a good, and Constitutional, idea anyway, generally enacted by legitimate legislative procedures..

        If the quote is accurate Willett would strike them down nonetheless.

        Of course he wouldn’t actually do that, I imagine, but the example does illustrate that the described philosophy is really not a good one for a judge to hold.

Please to post comments

Comments are closed.