Posted by David Bernstein: AEI Lochner Event on Video: If you couldn't make it to AEI today to watch the Lochner at 100 event featuring me, Jeffrey Rosen, and G. Edward White, you can watch a video of the event [1]here. Jeff's controversial New York Times piece came up in passing several times, but mostly the panel involved me talking about the history of Lochner, Jeff ably defending judicial restraint as principle both the left and right should endorse, and White eruditely discussing both the history of Lochner (he and I have some minor disagreements about the relative importance of "class legislation") and his view that no particular constitutionalist methodology (such as originalism) should be privileged. A very interesting discussion.
One issue I raised during the Q & A, which, as restated below, I think deserves some attention: if you are a liberal to moderate Democrat, would you rather have an outspoken libertarian like Justice Janice Rogers Brown on a federal appellate court, or even the Supreme Court, or a more typical cautious conservative Republican who got his position in part through pure political loyalty (cynics may say hackery)? Is Justice Brown's intellectual independence a plus from your perspective, because she is perhaps less likely to acquiesce to the wishes of the Bush Administration, or a minus, because she won't give a fig about what the New York Times editorial page says about her judicial opinions and is therefore less likely to "mature" in office? Does your answer change given that the most pressing constitutional issue of our times may very well be the scope of civil liberties during wartime (with wartime being, for now, indefinite)? Does it change knowing that someone like Brown would be the only Republican appointee to like Lochner, but my hypothetical political loyalist could be the fifth vote to uphold the evisceration of habeas corpus rights for those suspected of offenses connected with terrorism? Of course, when it comes to the Supreme Court the choice is unlikely to as stark as a pure conservative political activist versus an independent-minded libertarian intellectual(though FDR managed to appoint a group of Justices who lacked much intellectual independence, at least on New Deal issues, see, e.g., Wickard v. Filburn (unanimously upholding a law that would likely have been easily invalidated under the Commerce Clause a decade earlier)). Rather, it's going to be a question of margins--a relatively more independent-minded libertarianish conservative versus a relatively more pro-Administration, pro-executive power conservative. I don't think even the hope of Bush appointing a relative "moderate" conservative in the Alberto Gonzalez mode is going to change the equation on the executive power issue. References 1. http://www.aei.org/events/filter.all,eventID.1056,f.video/event_detail.asp _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
