President Bush just nominated a judge for elevation to the District of Columbia Court of Appeals that I think I can really get behind. The DC Court is arguably the “first among equals” of the federal appellate courts that function one level below the US Supreme Court. Judge Janice Brown has had some very interesting things to say that I think many of a libertarian bent will find appealing:
In Santa Monica Beach, Ltd. v. Superior Court (1999), for instance, she dissented from a decision upholding a rent control ordinance, declaring that “[a]rbitrary government actions which infringe property interests cannot be saved from constitutional infirmity by the beneficial purposes of the regulators.”
In a dissent in San Remo Hotel v. City and County of San Francisco (2002), which upheld the city’s sweeping property restrictions, Justice Brown expanded on that theme. “Theft is still theft even when the government approves of the thievery,” she declared. “The right to express one’s individuality and essential human dignity through the free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion.”
She is, of course, rabidly opposed by the Democrats and by some “social” conservatives. Unless Bush is willing to go to the mattresses for her, she will likely be filibustered by the Senate Democrats and denied a seat on the DC Court. Still, the nomination is good news.
As you may have already guessed, Justice Brown has long been a hero of mine. She is likewise in favor of returning to the rule of Lochner (which of course held economic liberties–such as true freedom of contract–to be protected by the Due Process clause of the 14th Am.).
I’m extremely excited about her nomination. Normally an economic libertarian would have no hope of a spot on the Supreme Court–but she’s a black woman. The next Supreme Court appointment will be a male hispanic. The one after that will likely be a black woman. (IMHO)
There will probably be three slots opening on the court relatively soon, and Justice Brown has a real chance depending on which party controls the White House. She might also make a decent compromise candidate given her libertarian social views.
However the wittless cowards in Congress decide her nomination, Justice Brown has an incisive legal mind and matchless moral courage. I urge you, Robert, to read some of her opinions. I think you might feel like a starry-eyed law student all over again. 🙂
Do you honestly believe that those donks will let anyone nominated by Bush get any further than their endless interrogations, which resemble being brought before the padres of the Inquisition?!
Actually I had read on FOX’s website that the Democrats had decided not to filibuster her nomination last night, far be it for me to expect them to hold to their word…but perhaps long winded pointless exercises in politics bore even them, amazing as that is to believe.
I found this cool quote by Justice Brown elsewhere:
“Where government moves in, community retreats, civil society disintegrates, and our ability to control our destiny atrophies. The result is: families under siege, war in the streets, unapologetic expropriation of property, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility and the triumph of deceit.”
If the Senate will allow a vote on her it is probably because they have some ammo, other wise it would be Estrada all over again.
I *am* a starry-eyed law student, and being in the UC system I’m sure as hell not going to see opinions like hers brought up in class…
Methinks she’ll be good reading; thanks for the mention.
Ever since FDR’s court-packing infamy in the 1930’s, the Supreme Court has used its increasing power to make our Constitution its personal plaything. It gave its blessing as the American people were stripped of their liberties one by one.
But why should the door not swing both ways? That power can be used to protect the people as well as to oppress them.
The 14th Amendment will be what saves our democracy. The Lawrence decision was a opinion of stunning significance. It was written solely to lay the foundation for a radical expansion of individualism and liberty in our society.
Justice Kennedy wrote for the Court:
Had those who drew and ratified the Due Process Clauses of the Fifth and Fourteenth Amendments known the components of liberty in its manifold possibility, they might have been more specific. They did not presume to have this insight. They knew time can bind us to certain truths and later generations can see that laws once thought necessary and proper, in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
Future justices like Justice Brown will have all the tools they need to begin attacking the state and winning back our liberty. The Revolution is coming. Just you wait …
Just a thought, but you don’t perhaps think that raising net awareness of this judge’s pro libertarian stance might make it more likely that she receives opposition to her appointment?
Thanks for the mention, I just wrote ‘my’ Senator on the Judiciary committee, as if it would do some good.
Judge Brown is African-American and female. The Dems may be a little skittish about blocking both Estrada and Brown.
Theft is still theft even when the government approves of the thievery.
Beautiful.