> On the flight out to Seattle this morning, I read David Margolick's
> piece in the December Vanity Fair about Bush's judge nominees. I've
> heard them described as right wing, but never fully appreciated how
> dangerous and insane they are. When I said that I'd rather have
> politics be about something other than preserving the social gains of
> the 20th century, this is exactly what I meant. Bush's gang of
> enforcers in black robes want to eliminate any positive social role
> the federal government has, and restore us to a 19th century weak
> state laissez-faire model. One of them, Janice Rogers Brown
> (thankfully blocked the other day in the Senate) defends Lochner v.
> New York, a 1905 Supreme Court ruling that invalidated a New York
> State law that limited the work hours of bakers. If politics is
> conducted on this terrain, we're fucked. Remember the Clinton years,
> when disappointment over his industry-friendly sweatshop monitoring
> body led college activists to found a real one?
>
> Doug
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Richard Epstein and David Friedman and many others on the Right are cranking out lots of lawyers with those kinds of views. The Right wants to undermine once and for all the distinction between regulations and takings [at the international/global level Nafta/WTO attempts precisely via the enitre issue of 'non-tariff trade barriers' and other *rhetorical/performative* strategies].
This opens up a larger issue of just what leftists are to think about the present and future of law and legal theory, given that the Right will attempt to destroy just about anyone competent to be a judge that subscribes to the CLS paradigm, Critical Race Theory and the like. The anarchists have one idea about this problem, albeit simplistic and unworkable. What small d democrats are to think about this problem connects up with just how engaged we should be in watching-challenging the State when it comes the future of the Bench. Saying all bourgie legal theory is an expression of a corrupt 'bourgeois right' will go over like a led zeppelin.
Alan Hunt or Robert Hale, anyone?
Ian