Libertarian presidential candidate Gary Johnson has said that if he’s elected president his nominees to the U.S. Supreme Court will be people that are committed to following the text of the U.S. Constitution. Yesterday Johnson doubled down on that promise, releasing a list of six candidates that he says he would consider naming to SCOTUS if he wins the White House. “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 announced in a statement accompany the release of his list. “As president, when the opportunity arises, I will nominate justices who have proven records of demonstrating that loyalty to the Constitution.”
Libertarians have good reason to be impressed by Johnson’s list. Not only does it include Georgetown law professor Randy Barnett, a veteran combatant before the Supreme Court who also happens to be one of the most influential legal scholars at work today; the list also includes two of the most libertarian friendly judges now sitting on the federal bench. They are Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit and Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit.
Judge Kozinski is known for his principled defenses of the First Amendment, the Second Amendment, limited federal powers, and the due process rights of criminal defendants. “I disagree with the liberals on the bench half of the time,” he told Reason in 2006, “and the conservatives the other half.”
Judge Brown, meanwhile, is revered in libertarian legal circles for her stirring votes in defense of the Fourth Amendment against pro-police “orthodoxy” and in defense of economic liberty against “burdensome regulation” and “a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers.” Judge Brown also has the honor—if you want to call it that—of having been denounced as a crazy libertarian by none other than Barack Obama. During Brown’s 2005 Senate confirmation to the D.C. Circuit, then-Sen. Obama delivered a lengthy speech on the Senate floor opposing her and all that he thought she stood for. “One of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court,” Obama said. Lochner, of course, refers to Lochner v. New York, the 1905 case in which the Supreme Court struck down a state regulation on the grounds that it did not serve a legitimate health or safety purpose and violated the constitutional rights secured by the 14th Amendment. There’s no reason to be troubled by that.