Wednesday, July 16, 2008

Obama Judges - a preview? (Chemerinsky?)

Arguably the number one star lawyer for the left just released a book. Erwin Chemerinsky just released a book called Enhancing Government

It was reviewed in the WSJ.

The relation between the federal government and the governments of the various states is a chestnut of constitutional theory, a perennial cause of angst and a gauge of American politics generally. In antebellum America, Southern states claimed the right to ignore federal law, presaging the Civil War. In the past century, Progressive arguments for the federal -- rather than the state -- regulation of labor set in motion the centralized administrative juggernaut that became Franklin Roosevelt's New Deal. More recently, the Rehnquist's Court's restrictions on federal authority, in favor of state autonomy, captured the Reagan Revolution's enthusiasm for decentralizing governmental power.

In "Enhancing Government," Erwin Chemerinsky provides a kind of holograph of what federalism -- as the federal-state relation is confusingly called -- would resemble if the U.S. were to enter a period of liberal ascendancy. His timing could not be better, since the chance of such an ascendancy is not exactly remote: A Barack Obama presidency seems possible, together with a Democratic majority in both houses of Congress. Mr. Chemerinsky sketches a vision of federalism that would empower government at all levels and delight civil plaintiffs and criminal defense lawyers of every description. The great virtue of Mr. Chemerinsky's book is that it serves as a blueprint for the Obama administration and a fair warning to its opponents.

Mr. Chemerinsky argues that no constitutional principle prevents the federal government from regulating any matter. Accordingly, he sharply criticizes the decision in United States v. Lopez, where the Rehnquist Court held that the federal government lacked the authority to prohibit carrying guns near a school. Second, he solves one of the great federalism controversies -- whether state or federal courts are more competent to adjudicate federal legal claims -- by allowing civil plaintiffs and criminal defendants to choose whichever court that they prefer: presumably the one that, in their view, will most likely vindicate their rights. Finally, he argues that state law should yield only to an express federal directive contradicting it. Thus, in his view, the Supreme Court was wrong to hold that the Food and Drug Administration's approval of a medical device precluded state tort suits impugning the device's safety.

Mr. Chemerinsky's brand of federalism expresses an enthusiasm for regulation and a distrust of the market. Fair enough, if that is one's (Democratic) sense of things, although businesses should beware. But are his ideas defensible on other grounds? Take his claim that the court's decision in Lopez had no basis in the constitutional text. You can arrive at such a conclusion only if you throw out the hallowed principle that the federal government possesses only enumerated powers. Congress passed its ban on carrying guns near schools under its authority to "regulate commerce among the several states," but carrying a gun is not a commercial act and affects only the state where the school is located. Thus the court's decision on behalf of local law.


So how probable is it that Mr. Chemerinsky's ideas will make their way into American law? It is hard to say. He is a prominent legal scholar -- now the dean of the new law school at the University of California at Irvine. If elected, Mr. Obama, himself a former teacher of constitutional law, may well choose federal judges -- or Supreme Court justices -- who know of Mr. Chemerinsky's work and the work of like-minded scholars. The legal theorizing of today is the judicial opinion of tomorrow. Still, we can hope that prudence will trump politics. To obliterate constitutional federalism -- because "yes, we can" -- would return us to the orthodoxies of an era of centralized power, something Mr. Obama professes to have left behind. We'll see.

Clinton wanted to nominate him in the 1990's, and was told by the GOP that he was DOA in committee. With the dems in charge of the senate, that might not be the case if Obama wins.

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