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THE DARK SIDE: It is time to confirm Nourse to the 7th Circuit

David Ziemer

David Ziemer

It has come to my attention that the nomination of University of Wisconsin law professor Victoria Nourse to the 7th Circuit is unlikely to be approved by the U.S. Senate.

Apparently, U.S. Sen. Ron Johnson opposes the nomination, and therefore, the Senate Judiciary Committee will not even schedule a hearing on the nomination. Johnson apparently wants a new nominating commission assembled to begin the process all over.

I voted for Johnson, of course, but this is very disappointing.

Nourse is certainly not someone that I would nominate to be a federal judge — she believes that Lochner v. New York, 198 U.S. 45 (1905), was incorrectly decided, while the restoration of liberty of contract guaranteed in Lochner is my life’s work.

But I’m not the president, am I?

However, I have read an article Nourse wrote in the California Law Review titled “A Tale of Two Lochners,” in which she criticizes the opinion and defends the New York bakeshop regulations as a valid exercise of police power.

The way I figure it, I’d rather have a judge who at least considers Lochner an opinion worthy of serious scholarship than one who dismisses it altogether. And I suspect that anyone else President Barack Obama might appoint instead of Nourse would probably fall into the latter category.

Furthermore, I once had the pleasure of attending a lecture in Nourse’s Legal History course at the law school, during which a professor from another law school defended the Lochner ruling.

The students in her class were very well read in materials both supportive and critical of the opinion.

In short, I am confident that Nourse would be an open-minded judge, and a well-qualified addition to the court.

Obama’s history in judicial appointments to the 7th Circuit also provides reason to give deference to the appointment.

His first appointment to the court, Judge David Hamilton from Indiana, has proven to be a most impressive judge.

I strongly encourage all attorneys to read the 7th Circuit’s opinion in Bettendorf v. St. Croix County, No. 10-1359 (7th Cir., Jan. 20, 2011). Of the three judges on the panel, only Hamilton recognized that the county’s down zoning of the plaintiff’s property from commercial to agricultural violated the Takings Clause, and dissented from the majority opinion.

Personally, I have no problem with litmus tests when it comes to the federal judiciary; if I were president, I would never appoint anyone to the federal courts unless he or she considered liberty of contract a fundamental Constitutional right.

But I have no converse litmus test; I do not oppose anyone else’s nominee just because he or she doesn’t meet my most important criteria.

Nourse is well-qualified for the court. There are no red flags to suggest she would not make a fine judge. It is long past time that her nomination proceeds to the Judiciary Committee.

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