On the Merits

From today's Washington Post:

Democrats have attacked Justice Owen as a radical conservative eager to substitute her views for those of elected officials. She is part of the conservative flank of a conservative court. Some of her opinions, particularly concerning abortion, seem fairly aggressive. But the cases that have made her controversial -- even the now-famous abortion case in which her then-colleague on the court, Alberto R. Gonzales, seemed to accuse her of judicial activism -- presented difficult questions about which reasonable minds can disagree. Justice Owen would not have been our choice for the job. But she is undoubtedly well-qualified, and the case against her is not strong enough to justify denying the president his choice. Mr. Bush did win the election.

This very well sums up my opinions on Justice Owen. While I would not have nominated her, she is a well-qualified and capable jurist. The American people elected Bush and a Republican Senate, just because I disagree with some of her rulings does not mean she is unfit for the position.

The editorial then goes on to question the validity of the nominations of Pryor and Brown, saying this of Brown:

In speeches she has openly yearned for the "Lochner era," a period in the early decades of the 20th century during which the Supreme Court invalidated various regulatory actions in the name of a supposed right of free contract. This is one of the most discredited periods of the court's history, a time when the courts wrote libertarian economic theory into the Constitution. And her speeches are not merely playful musings, for Justice Brown's work on the court in California reflects the same nostalgia. For years, Republicans have railed against "judicial activism." If that term has any meaning, it certainly describes Justice Brown's adventurous approach to economic liberties.

In recent months, I've seen quite a bit of scholarly re-acquaintance to Lochner - primarily from conservative legal thinkers. I admit I am no scholar, but this resurfacing of Lochner-type law seems utterly incomprehensible to me.

Does law need to be intellectually pure - yes, to a point. But there are also the lives of real individuals, real people that have to enter into the equasion. Justice demands it. Substantive due process may ask serious questions of consistency ... but to me, those questions can be answered with that one word: Justice.

A side point - in my very first subject in law school, I entered into the fray, discussing WW Volkswagen with my Civ Pro professor. I was attempting to make a point about the need to provide restitution to the party who was so horribly injured by the clear cause of the defendant party. My professor kept pressing me on why - and I finally said, "our law has to be able to provide justice." He looked at me and smirked and said, "Do you think Law has anything to do with Justice?" I meekly replied, "yes, I would hope so." He smiled and said, "Law has nothing to do with justice - and if anyone else here has such thoughts, we will beat them out of you before you leave law school." He said that and laughed, and the class laughed, and I laughed. He was joking after all...sort of.

A return to Lochner is yanking the justice out of law. I, for one, will fight that...but I am still a 1L - so maybe it will be beaten out of me soon enough...