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An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.
Read more at http://spectator.org/articles/62383/issue-supreme-importance-2016

Thoughts on ‘The Road to Serfdom’: Chapter 2, “The Great Utopia”

In Arts & Letters, Austrian Economics, Book Reviews, Books, Britain, Economics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Philosophy, Politics, Western Civilization, Western Philosophy on September 13, 2013 at 7:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.
This article is the third installment of a chapter-by-chapter analysis of Friedrich Hayek’s The Road to Serfdom. Analyses of Hayek’s introduction and Chapter I can be found here and here, respectively.

Hayek’s second chapter opens with several important reminders about the nature and history of socialism: that its rise was achieved not by the West having forgotten liberal ideas or the historical consequences of collectivism, but by an active campaign of persuasion against liberalism as an ideal; that it has roots in the French Revolution as an authoritarian answer to that movement’s more individualistic elements; and that only through the democratic influences of the revolutions of 1848 did socialism shed its authoritarian origins and assume a democratic veneer.

From there, it proves somewhat of a novelty to one accustomed to today’s concrete-bound, anti-conceptual political rhetoric. The chapter is, fundamentally, a brief lesson in political epistemology, dealing with the historical abuse of concepts that facilitated the popular adoption of socialist ideas.

Chief among the distortions Hayek notes is the socialist reconfiguration of the notion of liberty itself. The alleged “new freedom” introduced by socialists “was to bring ‘economic freedom’ without which the political freedom already gained was ‘not worth having’” (19). Hayek astutely describes this distortion of the concept of freedom:

“To the great apostles of political freedom the word had meant freedom from coercion, freedom from the arbitrary power of other men, release from the ties which left the individual no choice but obedience to the orders of a supervisor to whom he was attached. The new freedom promised, however, was to be freedom from necessity, release from the compulsion of the circumstances which inevitably limit the range of choice of all of us, although for some very much more than for others. Before man could be truly free, the ‘despotism of physical want’ had to be broken, the ‘restraints of the economic system’ relaxed… The demand for the new freedom was thus only another name for the old demand for an equal distribution of wealth” (19).

Hayek recognizes the epistemological methods by which socialists attained power, consisting largely of equivocation and anti-conceptual thinking, lumping together disparate concretes and attaching to them a single label—“freedom”—in order to pass off an intellectual package-deal on the general public, persuading them to embrace a contradiction. Though he does not go into this kind of detailed description of the process, Hayek at least acknowledges that the methods by which such intellectual smuggling is carried out form too large a subject to be discussed in the context of the chapter, and does not claim to have thoroughly explained it as a philosophical process but only as a historical one.

He proceeds to assess more recent, twentieth century distortions of the concept of socialism itself and how it has become muddled and confused by “progressives” who view fascism and communism as fundamental opposites, failing to recognize that both are merely species of the same genus. The processes of evasion and distortion, fueled by an excessive focus on concrete particulars at the expense of fundamentals, are thus seen to wreak as much havoc in the thinking of those twentieth-century advocates of socialism in their understandings of themselves and relations to one another as they did in the minds of nineteenth-century liberals who were persuaded to adopt socialist ideas. That statists are as much the victims of their own illogic as those they seek to oppress soon becomes clear.

In what might be one of the greatest compliments one could offer to liberalism, Hayek then points out, both in his own words and quotes by socialists themselves, how history and socialists’ experiences have shown time and again that despite their alleged fundamental opposition to one another, fascists and communists are known by the other to be prime targets for recruiting, fueling and perpetuating the hatred between them as each views the other as a competitor for the same pool of minds, but both are well aware of the immunity of true liberals to the propaganda of either. Liberals are viewed as resistant to their persuasions and unsuitable for the culture of perpetual compromise that characterizes socialist politics.

Again, in the end, Hayek effectively ties the subject back to contemporary Britain and how these same ideas, once prevalent in Germany between the two wars, are alive and well across the channel. “[I]n this country,” he writes, “the majority of people still believe that socialism and freedom can be combined… So little is the problem yet seen, so easily do the most irreconcilable ideals still live together, that we can still hear such contradictions in terms as ‘individualist socialism’ seriously discussed” (23).

Perhaps the only flaw in this second chapter consists of Hayek’s uncritical acceptance of the term “democracy” as being in any way synonymous with freedom or liberalism—a common error (even more so in today’s world!), and not one that deprives the chapter more generally of valuable insights, but one that it could have benefited from correcting. Hayek writes admiringly of Alexis de Tocqueville’s work, “Nobody saw more clearly than de Tocqueville that democracy as an essentially individualist institution stood in an irreconcilable conflict with socialism” (18).

Democracy, however, is not an essentially individualist institution. It is, in fact, not essentially anything except inclusive of a political process that allows for the popular, institutional expression of political preference and ideas. Democracy allows people to vote. Whether that vote is limited by a founding document protecting individual rights or any other principle is not inherent to democracy itself, and to think it so leads to many of the befuddled responses of policymakers today when they observe the imposition of democratic processes having failed to ensure peace, justice, or any other virtue of great political societies.

Let it not be forgotten that the first democracy in human history, that from which the concept derived and upon which its essentials rest, was Ancient Greece, where the life of a man such as Socrates could be voted away on grounds no more substantial than his having propagated ideas unwelcomed by the majority.

Democracy is thus neutral with respect to individualism, only upholding it when the republican qualities of a constitution, bill of rights, and limitations on the majority will are imposed. This leaves the phenomenon of democratic socialism, which Hayek sees as an oxymoronic distortion, rather justified in formal logic, if not in any rational morality or political ethic.

Overall, Hayek’s second chapter, “The Great Utopia”, is a dramatic improvement from his first. It sets out with a direct purpose to illustrate the epistemological errors that have aided the rise of socialism, and, with skilled application of political concepts and supporting evidence, it succeeds in that task. Whether this upward trajectory continues into his next chapter, “Individualism and Collectivism”, as he addresses subjects at somewhat of a conceptual middle-range between those of his first and second chapters, we shall see in the next installment.

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