Judge Robert S. Smith,who sits on the New York State Court of Appeals, has never been shy about expressing his opinion. At the Federalist Society he proudly identified himself as a Neoliberal saying “I am a Hayekian. I dislike intensely anything that strikes me as unnecessary coercion, whether it’s a tax or an exclusionary zoning regulation or a minimum wage law. I react very much against any governmental intrusion that seems to me beyond the minimum that’s necessary for an ordered society. I’m not only a Hayekian but also a judge.” And indeed a judge he is.
In 2006 Judge Smith wrote the majority opinion in Hernandez v. Robles, ruling against allowing same-sex marriage in the State of New York, the vote was 4-2. How his ruling denying gay rights squares with his Hayekian view of individual rights is a mystery. Also a mystery, how Smith was able to get appointed to the New York Court of Appeals.
But there may be an answer to that last mystery.
According to 2004 testimony from then Coordinator for Center For Judicial Accountability Elena Sassower before the New York State Senate Judiciary Committee, Smith made inappropriate contributions to Governor George Pataki. Contributions close to $500,000. The contributions came from Smith and his wife over a period of years.
In her testimony Sassower called for an investigation to “determine the extent to which his appointment is the product of monetary considerations.” She noted evidence that New York’s “merit selection” process for appointing judges had proven to be problematic as well as news reports that seem to demonstrate that Smith had been buying influence.
Sassower specifically noted a report by The Buffalo News detailing the Smith Family’s excessive political pay outs to Governor Pataki and other Republicans.
A Buffalo News analysis of federal and state campaign contributions dating to 1995 shows Smith and his wife have donated at least $219,000 to Pataki and state Republican committees. That does not include tens of thousands of dollars in additional donations Smith made to federal GOP candidates and committees, including President Bush, former U.S. Sen. Alfonse M. D’Amato, former New York Mayor Rudolph W. Giuliani, Utah Sen. Orrin Hatch, Kentucky Sen. Mitch McConnell and former senator and now U.S. Attorney General John D. Ashcroft.
The investigation Sassower called for did not occur and Smith received his appointment and subsequently took his Hayekian worldview to the New York Court of Appeals where it manifested as opposition to marriage equality.
Then again, perhaps buying a judgeship is Hayekian. According to Sassower’s testimony and other evidence the “merit selection” process for gaining a judgeship in New York had been corrupted by money – people were paying to get appointments.
So, in the Hayekian sense, buying a judgeship is the market triumphing. It is allowing capital to determine outcomes, and isn’t that what a Hayekian judge would want?