The Senate Judiciary Committee confirmation hearing on the nomination of Judge Neil Gorsuch to the Supreme Court begins on Monday. Last week Steve Hayward predicted that some idiot would take up the mantle of Slow Joe Biden. “Instead of holding up Richard Epstein’s book Takings,” Steve wrote, “as Joe Biden did with Clarence Thomas in an effort to make Thomas repudiate his philosophy, I wouldn’t be surprised if the banned book this time will be Philip Hamburger’s Is Administrative Law Unlawful?”
As usual, Steve is on to something. University of Chicago Law School Kirkland and Ellis Distinguished Service Professor Eric Posner would like to know: “Is Gorsuch a Hamburgerian?” Posner has even conducted a second or two of computer-assisted legal research to support the question: “Judge Gorsuch has approvingly cited Philip Hamburger’s book, Is Administrative Law Unlawful?, in three opinions.” (Three Tenth Circuit opinions are cited in the footnote I have omitted from that sentence.)
What is a Hamburgerian? To get the flavor of Posner’s post, the question should be formulated in the “Are you now or have you ever been?” style popularized by Joe McCarthy back in the fifties. In confirmation hearings during the Bush administration, the hot question was whether the nominee was then or had ever been a member of the Federalist Society– because the Democrats seek to define mainstream legal thought in a manner that excludes conservatives by defintion and because they are demagogues trying to please none too bright followers.
The University of Chicago Law School must be one of the most intellectually demanding in the country, and Posner holds down an endowed chair at the school. Posner’s post, however, partakes of the crude stupidity implicit in the “Are you now or have you ever been” jibe. By Posner’s lights, Hamburger and his book are thematically “anti-elite,” “anti-foreigner” and “anti-executive.” Posner asserts that these themes “are all strikingly resonant and rhetorically powerful—especially in the wake of the Obama era, when all these themes came together in the darkest recesses of the reactionary imagination.”
Professor Hamburger himself responds to Posner at the Library of Law & Liberty site in “Posner and Gorsuch.” Hamburger writes: “The version of my scholarship Posner presents to the world is almost unrecognizable…”
I think that’s fair, but one could turn Posner’s argument around. If Posner is concerned about anti-foreign attitudes, one wonders why he supports administrative power, which (as Hamburger points out) was designed already at the outset to keep much lawmaking out of the hands of our diverse or “foreign” populace? –in Wilson’s words, out of the hands of “Irishmen, of Germans, of Negroes”? And if Posner cares about our social diversity, why does he support a type of power that (as Hamburger notes) dilutes representative government and equal voting rights?
If you’ve read Hamburger’s book, you will credit Hamburger on this point: “My scholarship is not ‘anti-executive,’ but anti-administrative.” For a prominent law school professor, Eric Posner is a slippery customer.
Perhaps more to the point, Hamburger’s book is pro-United States Constitution and pro-limited government. He challenges the regime of administrative law in the spirit of Publius in the Federalist Papers. Publius famously proclaimed “a political truth of the highest intrinsic value” in Federalist 47 (by James Madison): “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Is this now beyond the bounds?