Gary Johnson’s Supreme Court Picks Are Actually Alright For Conservatives

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Kevin Daley Supreme Court correspondent
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Libertarian presidential nominee Gov. Gary Johnson released a list of possible nominees to the U.S. Supreme Court Tuesday, in a bid to revive his idealistic campaign for the presidency.

The Johnson campaign named federal judges Janice Rogers Brown and Alex Kozinski; professors Randy Barnett and Jonathan Turley; Chapman University School of Law Dean Rep. Tom Campbell; and Miguel Estrada, an attorney in private practice, to the short list.

“I have made clear that I believe the Supreme Court should be guided by a loyalty to the original and fundamental principles of limited government and liberty, embodied in the Constitution and the Bill of Rights,” Johnson said in a statement to the press. “As president, when the opportunity arises, I will nominate justices who have proven records of demonstrating that loyalty to the Constitution.”

Though it is supremely unlikely that the issue will ever come before the Senate, the list is a pretty good one for conservatives.

Among those likely to be well received by the Republican caucus are Brown, Barnett, and Estrada.

Brown currently serves on the U.S. Court of Appeals for the D.C. Circuit, arguably the second-most powerful court in the country. The daughter of black southern sharecroppers, Brown is among the most conservative (or libertarian, depending on whom you ask) jurists currently serving anywhere on the federal bench. Her dissent in Hettinga v. United States, arguing against the strong presumption of the validity of economic regulations, permanently ensconced her jurisprudence in a Lochner-esque tradition of economic freedom, liberty of contract, and judicial engagement. She is praised by legal scholars on the right as a clarion voice and vilified on the left as a latter-day Ayn Rand. (RELATED: Report: Trump Mulling Peter Thiel For The Supreme Court)

Professor Barnett fits a similar bill. From his perch at Georgetown University Law Center, he has led the intellectual revival of judicial engagement, the notion that the courts should actively protect constitutional guarantees, instead of deferring to the wisdom of Congress or administrative agencies. The debate between a jurisprudence of engagement and one of restraint, the more traditional conservative position as regards to the courts, is the defining conflict afoot in the conservative legal academy.

Estrada, a Honduran immigrant who came to the United States as a teenager, would rehash a battle begun in the early days of the George W. Bush administration. Estrada’s nomination to the D.C. Circuit was filibustered by Senate Democrats, who sensed the conservative wunderkind would one day be elevated to the Supreme Court (a lesson learned when another young conservative jurist named Clarence Thomas rapidly ascended to the high court a decade earlier). Bush eventually withdrew his nomination in favor of Thomas Griffith, who joined the bench in 2005, though Estrada still attracts a following among conservative legal groups like the Federalist Society. He is currently in private practice at Gibson Dunn alongside former Solicitor General Ted Olson.

The others might give Republican senators pause, but are probably confirmable.

Judge Kozinski, a respected jurist currently serving on the 9th U.S. Circuit Court of Appeals, has a decidedly unorthodox streak. He has urged a return to the firing squad for capital crimes (that society might encounter the barbarism of the death penalty), and was castigated for maintaining a publicly accessible website containing pornographic media. But those quirks may bind Johnson and Kozinski together. The conclusion to Kozinski’s opinion in Mattel v. MCA Records, — “The parties are advised to chill,” he says — reads like vintage Gary Johnson.

Turley and Campbell are each accomplished scholars in their own right. Campbell was a member of Congress before joining Chapman School of Law, while Turley has taught at George Washington University Law School for nearly 20 years while maintaining a fairly robust solo practice (he represented the House of Representatives in an Obamacare challenge, for example). Both, however, have decidedly libertarian reviews as regards war powers, which could attract the ire of Senate hawks.

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