Friday, June 24, 2005

Why Supreme Court Nominations Matter, And Why No One Should Like The Decision in Kelo v. City of New London

Does it matter who gets appointed to the U.S. Supreme Court? You bet it does.

By now everyone's heard about yesterday's Supreme Court ruling upholding a city's right to seize private property for the benefit of a private developer. You can read the entire opinion here. Washington Post columnist George Will summarized the Court's decision:

The question answered yesterday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes... During oral arguments in February, Justice Antonin Scalia distilled the essence of New London's brazen claim: 'You can take from A and give to B if B pays more taxes?... That is the logic of the opinion written by Justice John Paul Stevens and joined by justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Ah, yes. Justices Kennedy and Souter. Both are Republican appointees. Both have "grown" on the Court, meaning they have abandoned any adherence to principles of judicial non-activism. How did we end up with these two guys?

Well, it began with Robert Bork. Remember him? The Democrats, who then controlled the Senate, fought his nomination to the Supreme Court on purely ideological grounds, and fought so hard and dirty and with such tenacity that his nomination was withdrawn.

Then President Reagan nominated Judge Douglas Ginsburg, a fine young conservative jurist who was (and still is) on the U.S. Court of Appeals for the D.C. Circuit. Judge Ginsburg had smoked marijuana during his Harvard Law School faculty days. (There was no doubt that he had inhaled.) So his nomination was withdrawn too. He's now the Chief Judge on the D.C. Circuit, but he'll never be on the Supreme Court.

Next came Justice Anthony Kennedy of the 9th Circuit, whom President Reagan nominated and the Democrat-controlled Senate confirmed without much difficulty.

Had either Bork or Ginsburg been confirmed to the Supreme Court, yesterday's decision would have been different. So would many, many others.

What about Justice Souter? Well, his nomination also resulted from the Bork debacle. Wishing to avoid another bloodbath, then-White House Chief of Staff John Sununu came up with the brilliant idea of nominating a judge from the New Hampshire Supreme Court with no real ideological track record, so the Democrats (who still controlled the Senate) could not attack him. George Bush the Elder thus nominated Souter, who has since been almost a completely reliable liberal vote on the Court, on every issue.

What a disaster. Now Republicans control the Senate, and despite the Democrats' filibuster, are starting to push through judges who might actually make a difference, especially if they get to the Supreme Court. So what will we get?

Will G.W. Bush nominate someone like Alberto Gonzalez, another jurist of uncertain judicial philosophy? Or will he nominate someone like Michael McConnell, a 10th Circuit judge of unquestioned brilliance and conservative ideology?

This will be interesting to watch. So far, Republicans have been just awful at moving the court in the direction the electorate clearly wants it to go. This seems to be either because they are unlucky, are insufficiently committed, or both.

Is there a lesson from the recent past about how to do this right? I have one to suggest.

Think Clarence Thomas. A solid conservative and a brilliant man. The fight against him was perhaps the dirtiest ever seen against a modern Supreme Court nominee. And yet Bush the Elder held firm, Thomas was appointed, and we have seen excellent opinions from the man.

If G.W. Bush is willing to fight, he can make a difference that will last for decades. Or, he can take the squishy approach and appoint someone whose votes will result in all manner of judicial legislation: We'll see such things as the Boy Scouts ceasing to exist, gay marriage becoming a Constitutional right, limitations on First Amendment rights through "campaign finance reform" legislation, and the strengthening of the government's ability to take property, as we saw in the Kelo case.

Yes, it matters who is appointed to the Supreme Court. The voters certainly think so. That's one reason why the Senate is in Republican hands and why G.W. Bush is in the White House.

I'm betting that President Bush will do the right thing, but that's by no means certain. We shall see.

UPDATE: Opinion Journal's Best of The Web Today shares some interesting political analysis of the Supreme Court situation. The thinking comes from Opinion Journal's Political Diary, which is a subscription service that I normally cannot post here. Summary: The Republicans are not all that certain they'll be able to hold onto the Senate past 2006, so they're hoping to get one or two justices confirmed this year before the opportunity passes. (You should read the whole thing.)

How depressing. Will the chance to make a difference, and for which so many gave so much, be lost? The next few months will tell the tale.


Anonymous Anonymous said...

On the Kelo v. City of New London decision, I've been thinking that I may be the only conservative in the country who isn't outraged by the Supreme Court's decision. (That being said, I am truly outraged by the City of New London's rationale for the use of the eminent domain power.) The almost surrealistic posture of the justices in this case arises from the fact that the liberal wing--with "grown" Kennedy thrown in to make a majority--actually took the "federalist" or even "states rights" position, and the conservative wing, with the quixotic O'Connor joining to write the dissent, go for national court supremacy! It's the conservatives who apply incorporation to get the "public purpose" language of Amendment V into the mix against the states (a phrase that doesn't appear in Amendment XIV). And it gets even more bizarre as you look at the arguments--the liberals have no problem with giving the "little guys" the hose, while the conservatives get all weak in the knees over the potential for abuse by those with wealth and political influence. "Oh the humanity!"

Of course, I admit that there are a couple of overarching--and competing--principles that were consistently followed. The liberals quite consistently adhere to the "government-knows-best" position (although in this unusual situation, its the local entity that doesn't get overruled by our robed masters) and the conservatives adhere to the distrust and limitation of government authority.

Just when I started to think I might be the only self-styled conservative in America not outraged by the decision (as opposed to the imperious overreaching of the City of New London), at least someone at National Review comes to the rescue. Thank you Matthew Franck  

Posted by BlueBuffoon

Friday, June 24, 2005 4:46:00 PM  
Anonymous Anonymous said...

I sho do preciate yo complementation o my brilliance. Comin’ from a
white man that sound like the sweet music o heaven to these po ears.
Somehow it just don’t have the same impac hearin’ some brotha say
“Clarence, yo sho done good for a dirt poor nigga, seein as how you
got raised up in some backwoods shanty town not just on the wrong
side o the tracks, but place not even got nuff goin’ on to have no
damn tracks, you know what I’m sayin’ to y’all.” Sound to me like
the nigga be complementatin’ ole Clarence just ‘cause he be anglin’
hissef to get in some Ivy League school brotha ain’t got no business
be thinkin’ bout gettin into, you know what I’m sayin.

I know I done got a repumutation wit da brothas and sistas dat I
don’t care how dey all be getting along what wit da poverty and all
dat legacy o oppression and so on, but look how I done turn out,
rubbin’ shoulder wit white mans got mo power and wealth than whole
damn municipalities down where I grown up. See, the way I got it
figured, that backwards upbringin help me get where I got today, so
don’t be talking bad bout no lousy circumstance bringin you down.
Sides, ole Clarence don’t like y’all remindin him ‘bout where he come
from, know what I’m sayin.’ I gots a white wife, white friends,
fights fo white causes, fo all practical purpose I might just as well
grown up in Greenwich, Connectict, not Pinpoint, Georgia, if yo get
my meanin’ I gotta do a powerful bunch o ass kissin and
capitumatation and lawnjockeyin get to where I got today. Ain’t
nobody hand ole Clarence no free ride so don’t be spectin’ me be gon
long wit no scheme make seem like I somehow relate to y’alls plight,
see. I put that long behind me, though I do gets a hankrin ever now
and then to get down wit a sistah, but that ain’t proper and all less
you keeps dat carryin on secret, like ole Strom done did.

Well, y’all keep up the good work and I’ll keep on channelin’Antonin
Scalia to keep in y’alls good graces.
Clarence Thomas, Spreme Court Justice 

Posted by Clarence Thomas

Monday, June 27, 2005 11:28:00 AM  
Anonymous Anonymous said...

So how come all the conservatives get in such a lather over Kelo v New London, but nobody remembers back to the beginning of the last decade, when one G W Bush utilized powers of eminent domain to seize privately-owned land for a baseball stadium (which, to add insult to injury, was then built with taxpayer funds)?


Posted by Dale Marshall

Friday, July 08, 2005 1:14:00 PM  

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