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Watch This Judge: A Conservative Happy Warrior Dons Black Robes

January 9, 2016

Written by John Fund for National Review 

The best appointments to a court include individuals with solid legal credentials and integrity. But on rare occasions an appointment rises above that.

Governor Doug Ducey of Arizona met that standard this week by appointing public-interest lawyer Clint Bolick to the Arizona supreme court. Although he is a frequent speaker on behalf of the Federalist Society, Clint defies ordinary ideological categorization. He was inspired to become a lawyer by the career of Thurgood Marshall, the crusading attorney who argued for the plaintiffs in Brown v. Board of Education (1954) and helped shape civil-rights law as it comes down to us to this day. Clint is also the first independent, affliated with neither the Democrats nor the Republicans, ever to be appointed to Arizona’s high 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.

Since then IJ, aided by a superb media team led by John Kramer, has become the gold standard for public-interest law firms fighting arbitrary government power. Just last month the Department of Justice announced that it was halting its “equitable sharing” program, which allows the government to take and keep cash, cars, homes, and businesses from people who have never been convicted of, or even charged with, a crime. The process is called civil forfeiture and creates perverse incentives for abuse, because local and state law-enforcement agencies are allowed to keep up to 80 percent of the value of forfeited property, with the Justice Department keeping the rest.

In 2002, Bolick left Washington, D.C., to set up IJ’s first state chapter, in Arizona. In his first big case there, he represented brake-shop owner Randy Bailey against the city of Mesa, which was trying to condemn his property so that a private hardware store could be built on the land. He won that case. He also won a key ruling upholding tuition tax credits. (Arguments raised by IJ helped lead to a 2010 U.S. Supreme Court ruling that limited the public-financing provisions of Arizona’s Clean Elections Act.)

In 2007, Bolick moved to the Goldwater Institute, Arizona’s free-market think tank, where he opened a litigation division that challenged taxpayer subsidies being provided to build a private sports stadium. That drew the ire of Senator John McCain (R., Ariz.), who denounced Bolick for not living in “the real world.” Bolick also attacked the constitutionality of subsidies for solar energy, which drew the anger of solar supporter Barry Goldwater Jr., the son of the conservative patriarch after whom Bolick’s institute is named.

Bolick also denounced controversial Maricopa County sheriff Joe Arpaio for mishandling more than 400 reported sex crimes. “This is one of the greatest failures of law enforcement I’ve ever seen,” Bolick said. He has let people know he supports Arpaio’s removal from office.

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.”

ThinkProgress noted that GOP presidential candidate Jeb Bush had co-authored a book on immigration with Bolick, and that this week Bush lavishly praised his appointment. “So the closest thing this Republican field has to a moderate thinks that Bolick is a ‘fantastic’ appointment — and as many as four justices could retire in the next president’s term due to their advanced age,”ThinkProgress sniffed. “If a Republican wins the race for the White House, men like Bolick could soon fill the U.S. Supreme Court.”

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.



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