THE LOCHNER LITMUS TEST

Finally made it into the Philadelphia Airport late last night, after several hours delayed in George Herbert Walker Bush Airport in Texas, a real monument to small government if ever there was one. It was long enough to read a good chunk of Ed Klein’s anti-Clinton screed, and yes, it’s as bad as they say, and certainly libelous – though I’m not convinced that should be illegal. And it was a chance to watch the same couple minute CNN piece on O’Connor’s resignation several times.

Not being a Democratic Senator, I have the freedom to go off message and say that O’Connor’s resignation is unfortunate not because she was the linchpin in some sort of divine cosmic balance on the court that’s best for the country, but simply because her replacement will almost certainly be even more conservative than her, and conservative jurisprudence is bad for our country. Of course, if she herself didn’t want that to happen, she shouldn’t have presided over the theft of the 2000 election.

As for who comes next, my sense is that the Alberto Gonzales trial balloon is a red herring. It wins Bush credit from some moderates and Latinos for having an ostensibly moderate Latino on the “short list,” and when he goes with a Janice Rogers Brown instead, he’ll win that much more credit from right-wing extremists for having “listened” to their concerns about Gonzales.

The good news is that there are still five votes on the Court for upholding Roe (Casey was 5-4, but since then Justice Ginsberg replaced Justice White, who was one of the four), though not Steinberg v. Carnhart, which the federal late-term abortion ban seems to have navigated around anyway. That said, support for the right to autonomy in intimate spaces and decisions long recognized by the court is absolutely a standard for just jurisprudence.

At least as important as support for Roe in the coming controversy, though, should be opposition to Lochner, the court’s atrocious 1905 decision overturning New York’s minimum wage statute on the grounds that the absolute right of contract including a “right to work” for poverty wages. Lochner was overturned in West Coast Hotel, which rightly upheld the power of the people, through the legislature, to foster justice in the face of collective action problems and asymetrical bargaining relationships by enforcing universal labor standards.

Since Justice Black’s dissent in Griswold, opponents of privacy rights have made the perversely labelled the cases protecting them as “Lochner”-like, ignoring the differences between legislation regulating the relationship between employers, employees, and consumers, one which is by definition public, and legislation which regulates the private choices of individuals. Much as Footnote IV in Carolene Products suggests that judicial review is more justified when exercised to protect the rights of “discrete and insular minorities” who face more obstacles in protecting themselves in the legislative process, legislation itself is that much more justified when it achieves collective ends a majority of individuals might prefer but be unable to enact individually due to collective action problems. The law wrongfully overturned in Lochner achieved majority support despite employer opposition because most workers preferred to work less than 60 hours a week but could not unilaterally refuse to work more without threatening their livelihood. It is far less credible to argue that the legislation barring contraceptive use rightfully overturned in Griswold solved a collective action problem shared by a majority of couples who did not want to use contraception themselves but were somehow unable to decide for themselves not to use them. This illustrates the distinction between private and public interaction, and why privacy rights, which protect the former from the kind of regulation appropriate for the latter, preserve personal freedom, while the absolute “right to work” suggested in Lochner diminishes it.

While Justice Black makes equivalence between Lochner’s invocation of substantive due process and that in Justice White’s concurrence, the relationship between the fourteenth amendment and absolute laissez-faire contract rights is far more tenuous than the relationship between the Bill of Rights and privacy. The laissez-faire hostility to so-called “class legislation” was also explicitly rejected as constitutional law by the people through the sixteenth amendment, which in imposing an income tax recognizes the right and responsibility of government to pursue economic justice and equal opportunity through law. The American people, whose prosperity has been fostered and protected by many of those laws, deserve a new Supreme Court Justice who recognizes that right and that responsibility as well.

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So it turns out to be a compromise on judges after all. Hard to know just how to read it, given that with freedom for Democrats to filibuster under “extraordinary circumstances” and for Republicans to nuke if “continuing commitments made in this agreement” are abridged, all it resolves for good is that Janice Rogers Brown, William Pryer, and Priscilla Owen will soon be Circuit Court Judges and William Myers and Henry Saad won’t be. But given that the Democrats’ position on this has, for better or worse (you can guess where I come down on that one), all along been one of extreme willingness to compromise (“We gave you the judge who thinks men should dominate their wives, but do you really need the one who thinks God has veto power over the constitution”), almost any compromise would have been a political victory for the Democrats. Not as big a victory as the one I suspect we could have had tomorrow (in part because I trust John McCain’s political instincts more than, say, Joe Lieberman’s). As compromises go, the word a few days ago was that the major sticking point was GOP resistance to language like this:

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

So the Dems at least got something out of the negotiations. Today we saw a few Republican Senators buck the Senate leadership and the Senate buck the unilateral impulses of the White House. That counts for something. And the reason it happened is because public opinion has turned rather sharply against the Bush team and their exercise of their ostensible mandate. That’s a trend which should have implications which last much longer than this agreement. But only if the Democrats capitalize on it with a robust and aggressive vision. I’d say cutting this deal was a poor move, but those saying that the party had been taking a firm and principled stand which it undercut tonight forget that when it comes to steadfast refusal to let through extremist unqualified judges, the ship had sailed on that one – and driving it were Randians, theocrats, and Randian-theocrats who have now safely arrived in a court near you. The Democrats’ repreated invocation of outrageous nominees they’d let though, rather than making them seem eminently reasonable, just made them look sort of silly.

Speaking of the future, anyone who still thinks John McCain – in whose office the compromise was apparently signed – isn’t running for President has another think coming. Same goes for anyone arguing that he does whatever’s right regardless of politics. As for Bill Frist, I’m sure he’ll do well on the lecture circuit. Or at least, he has a better shot at it than at a serious run for the GOP nomination. Good news for him: washed up right-wing speakers, unlike sitting Senators, aren’t expected to go into inner cities where they have to worry about being stabbed to death by children of color with pencils. Now, back to spanish conjugations for me.

Trent Lott just livened up what’s been a not overly riveting series of Senate floor speeches on judicial nominations by accusing Democrats with concerns about extremists nominees of having turned the Senate “into a torture chamber.” Given the honorable Senator from Mississippi’s enthusiastic defense of the administration when it came to actual torture, one can only assume that he indeed means that the Senate has caused pain “of an intensity akin to that which accompanies serious physical injury such as death or organ failure” to Priscilla Owen and Janice Rogers Brown.