The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.This sort of thing is why the Dems tried to block Janice Rogers Brown (of the "Thomas is a bit too liberal" school of jurisprudence, apparently) from being appointed to bench.
My overall sentiment at the time was that I simply didn't trust President Bush ("this is horrible" ... yes Sandra), in particular, getting the sense from various accounts that he was playing hardball on judicial nominations. This was standard stuff from at least the Reagan Administration, if not before. Meanwhile, Democratic presidents of late were less ideological, as far back as Carter more concerned with diversity overall than ideological conformity. I was challenged on a Volokh Conspiracy blog (pre-Facebook) to prove this fact, the other side using the usual two-tier approach where they get to make various one-note claims with thinly disguised spittle while you need to prove general principles with footnotes. To be fair, one person used the "but he wasn't a pure knee-jerk idiot" approach. Sort of like, well the Astros do win sometimes so they are like the Yanks.*
Bush41 is the sort of approach that appeals here. You got your Souter AND your Thomas. Fair is fair there. Eventually, helped by winning the '06 elections, Bush was forced to tone back his approach. I realize, you know, that (favorite example) the Dems pushed Miguel (I heart Kagan) Estrada drop out, but Janice Rogers Brown et. al. did not. This was the result of the "Gang of 14" compromise in which only "extraordinary circumstances" would now (at least in their opinion) be the appropriate time to filibuster nominees. Goodwin Liu (Judge Liu / CASC) shows this includes "being mean to Alito." Anyway, the approach there was that most of the controversial nominees were confirmed, a few obscure ones were not, and Republicans still had the chance to block people like Victoria Nourse, who various conservatives/libertarians thought was unfair, but hey, we are still going to vote for the senators anyhow. Yes, yes. The Dems, when President Romney (no) is in place, will get to filibuster some too, just not as badly.
The opening quote is an excerpt from a rather blatant bit of pique (concurring, accepted the benighted Supreme Court required the unfortunate result regarding some dairy regulation) that was joined by another libertarian favorite while a third concurred separately to note that "well, I sympathize, but that was bit much." The "ugly truth" is that we never quite had "cowboy capitalism," even back in the days of yore. As noted by CJ Roberts in a recent opinion, government might have been smaller back in the late 19th Century true (comment about race relations omited, since the Rogers is black), but not that small. And, as noted by Walter Dellinger (ACA supporter, Clinton S.G.), you can support economic rights more than current doctrine without rejecting the idea that modern economic regulations further competition (if not the brand you like) and protect consumers.
The concurring opinion reads more like a libertarian tract than a reasonable criticism of a current aspect of modern day doctrine. As noted by an appellate judge who knows for what he speaks, concurring and dissenting opinions (there a certain category) has value. Even those like these that do not seem very judicial. Still, I think the value of economic liberty warrants a better voice. The Constitution has various protections, down to the Due Process Clause ("property"), which apply to all things, including things of an economic nature. Contraceptives can not just be owned, e.g., but bought. Economic matters are often more "public" than other matters and thus require (warrant) less judicial scrutiny, but even there, that is different than none. It is unclear how that helps this litigant though, except if you simply do not like the modern day regulatory state. Not that days of yore, back in the days of John Wayne and Clint Eastwood, lots of economic regulation would not exist as well. Note that Justice Harlan, not just Holmes, dissented in Lochner, the former quite willing to strike down some laws.
Anyway, good reading, including the "growling" reference.
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* Not taking a certain Internet comic to heart, I take such things seriously, and spend lots of time checking up on things, at times going a bit crazy trying to find the right source material. On how Republicans are special here, the book Broken Branch (by a conservative and a right leaning centrist) is a nice source, though darn if it never tends to impress the "pox on both their houses" crowd that pushes my buttons.
It is almost amusing how we have some on the left upset that Obama doesn't do more to press the issue in the courts as well as wanting him to pick more left leaning judges (see Kagan) while others find it hard to accept that at the very least (putting aside if Bush did anything wrong) that Obama is less hard core on this issue than Bush/Reagan. Anyway, I defended filibustering then and push for reform now because I realize the tactic is in effect an emergency mechanism. It also didn't do that much then, push comes to shove.
If some Bush-like Democrat comes on the field and uses heavy-handed tactics when not even getting a popular majority of the vote, come back to me. Obama does not do this as a whole. The recess appointment issue is far from that -- ironically, he had to deal with (and did so sparingly even there) a recent Democratic precedent of phony sessions that were recesses in all but name. Even then, he only acted in an extreme case and long after it was clear the Republicans had any desire to actually full a position unless legislation that got through the filibuster laden Senate changed. Filibustering a judge -- a life term appointment at that -- didn't make some appellate court become nonfunctional.
As with my note earlier with fiscal responsibility, sorry, the allegation won't wash.