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Court on purely ideological grounds, and fought so hard and dirty and with such tenacity that his nomination was withdrawn.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 So his nomination was withdrawn too.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.