A Fractured Coalition on Judicial Nominees

By | 2017-01-15T18:54:26+00:00 January 15th, 2017|
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Mark Pulliam, a prolific legal writer and commentator on American conservatism, recently provided a Kirkian assessment of libertarians, wherein he argued that libertarians have exercised too much pull over the legal conservative movement. Pulliam exhorts President-elect Trump to resist the libertarian temptation in nominating federal judges.

In particular, Pulliam objects to the endorsement of “judicial engagement” by several prominent libertarian scholars—an endorsement made most prominently by Georgetown’s Randy Barnett in his most recent book, Our Republican Constitution. Roger Pilon, vice president of legal affairs at the Cato Institute and a libertarian legend, responded to Pulliam’s essay with a vigorous defense, alleging that Pulliam’s argument for judicial restraint essentially amounts to a repudiation of natural law and an abdication of judicial duty.

What prompts me to wade into this dispute is not so much to take a position but to highlight what this illustrates about the withering traditionalist-libertarian coalition in the legal conservative movement, an already-torn partnership that, after Trump’s election, appears on the verge of dissolution.

First, some background on the traditionalist-libertarian coalition, which dates back to Frank Meyer’s “fusionism,” a linking of tradition and liberty as the twin pillars of the American Right. The coalition has always been like visiting a relative you don’t really like: There is some faint affection bringing the two together, but both sides generally endure the experience by avoiding topics that will reveal that, other than some weak lineal connection, there is not much holding them together. If traditionalists can avoid topics like culture and religion, and if libertarians can put down their bong and stop watching pornography, the coalition can work.

The problem, of course, is that, just like with family disputes, the issues have a way of creeping back into the conversation. That is what Donald Trump represents—he is a reminder of what divides traditionalists and libertarians.

This most recent fracture in the coalition comes down to the three particular issues that propelled Donald Trump to the presidency: trade protectionism, immigration restrictionism, and foreign policy isolationism. Traditionalists tend to favor all three, whereas some libertarians loathe these stances as violations of the free market, expressions of racial chauvinism, and abandonment of American exceptionalism.

I emphasize some libertarians. Often overlooked in these debates is the fact that many libertarians—people who align with the Mises Institute, for example, as opposed to the Reason, Cato, and Institute for Justice crowd—see the North American Free Trade Agreement and the Trans-Pacific Partnership as technocratic restrictions on free trade, secure borders as essential to sovereignty, and military interventionism as unjustified except in narrow circumstances dictated by national interest. It is not libertarianism that Pulliam opposes, but a certain brand of libertarianism, a brand that exercises a significant influence over the legal conservative movement but by no means defines the political philosophy.

It is not that entire side of the family that you hate—it is just that really annoying Aunt Sally and her bratty kids.

Just as Pulliam seems wrong to pile all of his distaste on libertarianism, Pilon seems wrong in attributing to Pulliam a rejection of natural law. One could surely believe in natural law without believing that nine unelected, life-tenured, politically connected judges from New York and California, trained in law at Harvard and Yale but not in philosophy or in natural law theory, should have the ultimate say on what constitutes a natural right for a geographically and culturally diverse nation of over 300 million people.

Bill Buckley famously said that he would rather “live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.” My sense is that Pulliam might likewise trust the first 2,000 names in the Perryton (presumably not in the Austin) telephone directory more than he trusts the Supreme Court to make pronouncements on natural law. That doesn’t mean Pulliam doesn’t believe in natural law, any more than Buckley meant he didn’t believe in government. It means Pulliam simply doesn’t trust the Supreme Court to opine on that subject.

And why should he? As Justice Scalia reminded us in Obergefell v. Hodges (2015), the Supreme Court consists of the most culturally untethered and demographically unrepresentative group of men and women in the United States government (and that is saying a lot). This is a political body that, while nominally controlled by Republicans for the last 45 years, has stridently and consistently led the nation toward the left on a multitude of hot-button cultural issues.

The Cato and Reason types might like judicial engagement, because in addition to advancing progressive social causes, the Supreme Court has also supported many of their favored libertarian causes—siding with big business over local communities, secularism over religion, and open borders over immigration restrictions—but that is not an argument addressing whether judicial engagement in the abstract is good. That is a practical calculation about whether you like how the Supreme Court has engaged in the past and is likely to engage in the future.

Traditionalists, after finding almost nothing they like out of judicial engagement, have settled for restraint as the next best thing to victory. That is not an abdication of judicial duty. It is a realization of how the federal judiciary works in practice.

“Ah,” the libertarian will respond, “that just means we need better federal judges.” But, pray tell, whence will these judges come? From the elite legal academy, where a faculty that is only 98 percent progressive is considered ideologically diverse? And guess where that remaining two percent resides on the ideological spectrum? You got it—they are almost all either libertarian or socially progressive conservatives.

Previously, I referred to these “conservatives” as high school nerds adopting the language of the cool and hip left in hopes of securing a prom date. But that is only half of their nerd complex—they are also nerds who want to be the bad boy, strutting around the law school, complaining about how they are the one bad right-winger on campus, struggling under the orthodoxy of the left to argue that federal drug regulation is unconstitutional.

This is why the list of Trump’s academic and intellectual supporters consisted of five law professors, and a handful of lawyers (including Pulliam), while the list of originalists against Trump consisted of 10 times that number. To make this clear, those “originalists” against Trump nearly exhaust the right-of-center law professors in the entire nation, and many in that precious two percent came out against the Republican nominee, even though he clearly offered their best hope of advancing their agenda. And despite all this, after the election, these NeverTrumpers were scouring the halls of the Federalist Society National Lawyers Convention in hopes of saddling up to the administration to advance their preferred form of judicial activism.

It is no wonder, then, that Pulliam is suspicious of libertarian judicial engagement. In the vast ocean of progressivism in the legal academy, libertarians are but a small island, and they have left no place on that small piece of land for the other pillar of the American Right.


About the Author:

Jesse Merriam
Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.
  • Severn

    … Pulliam’s argument for judicial restraint essentially amounts to a repudiation of natural law and an abdication of judicial duty.

    Assuming for the sake of argument that natural law exists, it is very far from obvious that it is the proper role of judges to determine what it is and to impose it on everyone else.

    • ADM64

      And if the majority wants to define people’s rights and privileges in such a way as to remove them, that’s okay? (As a practical matter, perhaps no one could resist such a thing – as a moral principle of justice it makes a huge difference). Law and justice are just whatever is passed by the Congress? The Founders did not envision that. They always spoke of more fundamental principles, and explicitly in terms of natural law, Nature’s God etc. FYI natural law isn’t all that mysterious. Hence the principles of the Declaration.

      What role did the Founders envision for the Courts?

      What rights do we have other than those in the Constitution?

      Why do majorities have legitimacy simply as majorities (the Bork view)?

      • Severn

        if the majority wants to define people’s rights and privileges in such a way as to remove them, that’s okay?

        I don’t know what meaning you are attributing to that phrase “ok”. I get the impression it has something to do with your own subjective feelings. if the majority want to define peoples (that is, their own) rights and privileges in such a way as to remove them, then that is entirely in accordance with both the text of the Constitution and the Founders conception of how the country they were creating should function. So it is indeed “ok” in that sense.

        Law and justice are just whatever is passed by the Congress? The Founders did not envision that.

        That is precisely what they did envision.

        What rights do we have other than those in the Constitution?

        That’s a stupid question. The intelligent question is “Who decides what rights we have?” And no, “natural law decides” is an intelligent answer.

        The Founders …. always spoke of more fundamental principles, and explicitly in terms of natural law, Nature’s God etc.

        No. they dd not. In fact they rarely spoke of such things. There is one passing mention in the Declaration and none at all in the Constitution. And when they did speak of them, they did not mean by those phrases what libertarians mean by them – which is that laws should be made by a handful of unaccountable so-called “judges” who act in practice as a super-legislative and super-executive body combined.

  • N.S. Palmer

    Libertarianism is one political value among others. It cannot be the only criterion for making any political or legal judgments.


  • ADM64

    Judicial engagement, as defined clearly in Neily’s book, simply means that judges are to actually judge ALL cases i.e. they are to pay attention to the facts, to the law, to the context (when a constitutional case in particular is involved), and to recognize that all parts of the law matter. In the case of the Constitution, it means ignoring the false distinction the Court drew between fundamental and non-fundamental rights (especially in economic matters) and to not simply give the government a pass on areas where the court deems rights non-fundamental. I fail to see how anyone could object to that.

    If a proper understanding of our constitution requires a proper understanding of natural law, than law schools should incorporate it. One need not be a philosophy professor (the Founders weren’t) to get the fundamental ideas and concepts.

    • Severn

      Natural law is outside the purview of courts of law and of judges. It finds its truest expression in the decisions of “we the people”.

      To grant to courts the power to proclaim what natural law is, and to make its own opinions on natural law binding on everybody, is to create a despotism and to abrogate the most foundational right of them all – the right of a people to make the laws under which they live. if you bother to check you’ll see that right mentioned by the Founders.

      There is not one iota of difference, practically speaking, between the libertarian conception of constitutional law and the liberal one. Both see “constitutional law” as a means to impose their own will on the majority. Even their desired goals differ only slightly. Libertarians are just as enthusiastic in their support for constitutional abominations like Roe v Wade or Obergrefell vs Hodges as their close cousins on the progressive left.

      In fact the liberal position is more intellectually consistent than the libertarian one. Once you’ve granted the courts sweeping powers to make the law as they see fit under some guise, be that guise “the living constitution” or “natural law”, you no longer have any grounds to protest when those courts do something you happen to disapprove of. If the SCOTUS says that there exists a “natural right” to free government health care, on what rational grounds are you going to oppose them? All you’re going to say is “But that’s not what I meant by natural law!”