Democrats & Alito

J. Noble jfnbl at earthlink.com
Mon Jan 16 17:27:21 PST 2006


Libertarians might recognize that the liberty interest implicates a 
legitimate regulatory interest, and believe that regulatory authority 
is less threatening when it is diffuse and local, rather than 
monolithic and removed from political influence. If libertarians 
prefer their liberties less regulated, they might also prefer their 
regulators more accountable.

John Noble

At 7:09 PM -0500 1/16/06, Mark Tushnet wrote:
>I wonder if Ilya Somin could expand a bit on this:  "most
>libertarian jurists, including those who are pro-choice in their
>personal views, are likely to take a dim jurisprudential view of
>Roe."  What in the jurisprudence underpinning Roe -- other than
>its cursory treatment of the status of the fetus as a person
>whose liberty must be protected equally with that of the woman
>-- is problematic from a libertarian point of view?  It can't be, can
>it, that libertarians think that the abortion issue should be left to
>democratic choice, unlike other issues to which libertarianism
>gives substantive answers?  Nor, I would think, can libertarians
>resolve the question of the fetus's status by reference to
>religioius views.  (Think here of the anti-religious Ayn Rand, not
>as representative or typical, but as symbolic of libertarianism's
>status as a product of Enlightenment rationalism.)
>
>----- Original Message -----
>From: isomin at gmu.edu
>Date: Monday, January 16, 2006 6:32 pm
>Subject: Re: RE: Democrats & Alito
>
>>  Libertarians are internally divided on the issue of abortion.
>>  However, most libertarian jurists, including those who are pro-
>>  choice in their personal views, are likely to take a dim
>>  jurisprudential view of Roe. More to the point, it is highly
>>  unlikely that a pro-Roe libertarian will be nominated by any
>>  Republican administration. The types of libertarians we can
>>  reasonably expect to see (if we can expect any at all...) are
>>  people like Janice Rogers Brown or Kozinski (anti-Roe
>>  libertarians), or libertarian-leaning conservatives like Luttig or
>>  Jerry Smith (whom I clerked for on the 5th Circuit).
>>
>>  It is possible that libertarian or libertarian-leaning justices
>>  might be willing to constrain Roe rather than overrule it
>>  completely. But those who actually stand a chance of being
>>  nominated are unlikely to actually support Roe, much less
>>  extensions like Stenberg v. Carhart. 
>>
>>  Another issue that both liberals and conservatives need to
>think
>>  about is whether Roe deserves to be as much a central focus
>of the
>>  selection and confirmation process as it has been so far.
>>
>>  Ilya Somin
>>  Assistant Professor of Law
>>  George Mason University School of Law
>>  3301 Fairfax Dr.
>>  Arlington, VA 22201
>>  ph: 703-993-8069
>>  fax: 703-993-8202
>>  e-mail: isomin at gmu.edu
>>  Website: http://mason.gmu.edu/~isomin/
>>
>>  ----- Original Message -----
>>  From: Sanford Levinson <SLevinson at law.utexas.edu>
>>  Date: Monday, January 16, 2006 5:45 pm
>>  Subject: RE: Democrats & Alito
>>
>>  > Bring on the libertarians (or, at least, the "libertarian types"
>who
>>  > will protect us against presidential authoritarianism in return
>for
>>  > greater monitoring of economic regulation).  I assume,
>incidentally,
>>  > that libertarians would keep Roe in place.
>>  >
>>  > sandy!   
>>  >
>>  > -----Original Message-----
>>  > From: conlawprof-bounces at lists.ucla.edu
>>  > [conlawprof-bounces at lists.ucla.edu] On Behalf Of
>isomin at gmu.edu
>>  > Sent: Monday, January 16, 2006 4:41 PM
>  > > To: DavidEBernstein at aol.com
>>  > Cc: CONLAWPROF at lists.ucla.edu
>>  > Subject: Re: Democrats & Alito
>>  >
>>  > I agree with most of what David says here. But the key
>question
>>  is
>>  > whatliberal Democrats think. Is limiting executive power
>really
>>  their> highest priority? If so, what other concerns are they
>>  willing to
>>  > sacrifice for it? The potential conservative nominees most
>likely to
>>  > constrain executive power are libertarian types who will also
>anger
>>  > liberals on property rights, federalism and other issues.
>>  Liberals
>>  > mustask themselves whether this is a tradeoff they are
>willing to
>>  > accept.
>>  >
>>  >
>>  >
>>  > Ilya Somin
>>  > Assistant Professor of Law
>>  > George Mason University School of Law
>>  > 3301 Fairfax Dr.
>>  > Arlington, VA 22201
>>  > ph: 703-993-8069
>>  > fax: 703-993-8202
>>  > e-mail: isomin at gmu.edu
>>  > Website: http://mason.gmu.edu/~isomin/
>>  >
>>  > ----- Original Message -----
>>  > From: DavidEBernstein at aol.com
>>  > Date: Monday, January 16, 2006 10:28 am
>>  > Subject: Re: Democrats & Alito
>>  >
>>  > > What kind of "conservative" nominee should Democrats
>prefer?  A
>>  > > complicated question, but a partial answer is someone who
>>  > exhibits a
>>  > > fair amount of political independence from the Republican
>>  > agenda, and
>>  > > someone who is unlikely to give away the executive power
>store.
>>
>>  > I
>>  > > continue to be impressed that Judge McConnell was willing
>to
>>  > write a
>>  > > WSJ op-ed lambasted Bush v. Gore, even though he must
>have
>>  known
>>  > that
>>  > > this would significantly diminish his chances to be either
>SG
>>  or
>>  > a
>>  > > USSC nominee.  I've always liked the idea of putting people
>in
>>  > power
>>  > > who don't really crave it.
>>  > >
>>  > > In a message dated 1/15/2006 4:35:39 PM Eastern
>Standard Time,
>>  > > isomin at gmu.edu
>>  > > writes:
>>  > > I agree that the Democrats might have been able to exploit
>>  > internal
>>  > > differences among conservatives to get a "better" (for
>them)
>>  > nominee.
>>  > > However, they were hampered in this not only by the
>incorrect
>>  > > perception of a unified "constitution-in-exile" movement but
>>  > also by
>>  > > lack of consensus among themselves as to which type of
>>  > conservative is
>>  >
>>  > > the lesser of the available evils.
>>  > > Obviously,
>>  > > they would have preferred another David Souter, but it's
>not
>>  > clear to
>>  > > me that they have a consensus view as to which real
>>  > conservatives
>>  > > (i.e. - people that, say, Fed Soc members would consider
>>  "real")
>>  > are
>>  > > better or worse than others. I rarely give advice to
>Democratic
>>  > > activists, but I  would suggest that this is an issue they
>need
>>  > to
>>  > > think about more.
>>  > >
>>  > > David E. Bernstein
>>  > > Visiting Professor
>>  > > University of Michigan School of Law
>>  > > Professor
>>  > > George Mason University School of Law
>>  > > http://mason.gmu.edu/~dbernste
>>  > >
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