JOHN FUND: Why the Left Is Up In Arms Over Clint Bolick’s Appointment to the Arizona Supreme Court.
Clint’s passion is to stand by the little guy or gal who is being oppressed by government regulation. He thinks that the Supreme Court got it wrong in the post–Civil War era when it failed to identify economic liberty as a fundamental civil right. In 1989, after a stint at the Justice Department’s Office of Civil Rights, he took on his first private client: a colorful shoeshine-stand owner who saw his business shut down by Washington, D.C., officials who invoked a Jim Crow–era law against sidewalk bootblacks.
Bolick won that case and, together with another former government attorney, Chip Mellor, founded the Institute for Justice. Soon it was filing suit on behalf of hair braiders whom arbitrary licensing requirements blocked from working, and of casket makers who couldn’t sell their wares except through a funeral home. Later, he and Mellor expanded IJ’s mandate, and it became the country’s leading legal advocate for school-choice programs designed to help inner-city children. IJ won a pivotal victory in that battle when, in 2002, the Supreme Court upheld Cleveland’s school-choice voucher program as constitutional. . . .
Liberals in Arizona with whom I spoke during a visit there last month were bemused by talk that Bolick was being considered for an appointment to the state supreme court. Larry Hammond, a Phoenix defense attorney and former Watergate prosecutor, praised Bolick to the Arizona Republic: “A thoughtful conservative is going to be less comfortable with accepting that the criminal-justice system always gets it right. It would be nice for a change to have a judge who’s not so sure about that.”
Things are different with liberals at the national level. The Politically Correct Legal-Industrial Complex reacted with horror. A post at ThinkProgress, a left-wing site founded by Hillary Clinton adviser John Podesta, marked Bolick’s appointment with the headline “The Most Chilling Political Appointment You’ve Never Heard Of.” . . .
What worries the Left is that Bolick shares with Justice Clarence Thomas, a mentor of his, the view that the Constitution is not a “living document” subject to changes in public opinion. “Take the words of the Constitution literally,” he told KJZZ radio this week. “When judges stray from the text of the Constitution and supplant [it with] their own ideas, like changing the words ‘public use’ into ‘public benefit,’ they’re amending the Constitution. That, to me, is beyond the scope of proper judicial action.”
Bolick’s appointment will have national implications, as it sends a clear signal that a staunch advocate of limits on judicial power can also have a belief that the Constitution requires vigorous enforcement of such basic rights as the right to earn a living and the right to be free of arbitrary government power. When he becomes a judge, Clint Bolick will be putting away the legal six-shooters with which he happily sued bureaucrats for a living. But his opinions will mark him as one of the most interesting judges serving at a high appellate level — and as a potential U.S. Supreme Court justice appointed by a future Republican president.
The rules are that lifelong lefty activists (like Ruth Bader Ginsburg) can be appointed to the bench because they have demonstrated a “passion for justice.” Righty activists, on the other hand, even if they’ve quite literally worked on behalf of the little guy, are “ideologues.”