January 03, 2006

Alito and Liberty Interests

Below, Sean mentions Alito’s position on liberty interests and due process. As anyone familiar with Randy Barnett’s work knows, many on the libertarian wing of the right think judges should protect such interests. They argue (with some good evidence) that the framers of the Fourteenth Amendment’s Due Process Clause intended to protect a variety of unenumerated common-law rights. Unlike Sean and others on the right, these libertarians might oppose Alito because he is likely to reject this due process theory.

Let’s put aside the debate on this question. Say you are a libertarian who hates Alito’s position on due process. What should your position on Alito be? Risking an avalanche of friendly-fire from fellow libertarians, I would argue you should, counterintuitively, support Alito’s confirmation--or, more precisely, oppose a filibuster of Alito.

To see why, first consider this paper by John McGinnis and Michael Rappaport. Two strong advocates of judicial deference to legislators, they argue in favor of supermajority voting rules for judicial nominees to the Supreme Court. If, as they do, you support a strong form of judicial deference, their position is very attractive: The nominees who fare best under supermajoritarian voting are those that can command extremely broad support from elected officials. It is only natural that those capable of mustering such support are very deferential to legislators.

That’s bad news for the view of due process that many libertarians support. The filibuster, and other forms of supermajority voting, ensures that lawyers who use the Due Process Clause to strike down popular legislation, as this view of due process may require, are at an especially steep disadvantage in the confirmation process.

Here’s the lesson for libertarians—and anyone else who believes the Court should serve an important countermajoritarian role. Contra McGinnis and Rappaport, they should oppose supermajority votes for nominees, even of nominees they don’t wholeheartedly support.
Opposing the filibuster increases the (currently very low) chances that judges who take a more favorable view of economic rights will be confirmed. (And, yes, some future candidates might fit this bill: like Walter Dellinger, who could face a risk of a Republican filibuster).

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