Friday, July 01, 2005



Where was the huge ideological battle when Ruth Ginsburg and Stephen Breyer were nominated? Ginsburg was confirmed, 97-3 and Breyer was confirmed, 87-9. In any event, conservatives and the Bush administration now have a fight on their hands when it comes to supporting a successor to Justice Sandra Day O'Connor. The liberal media establishment will relish helping make this nomination process into an imbroglio. The liberal Agenda Machine, spear-headed by advocacy groups and influential opinion-makers, will try to scare the heck out of Americans by saying that President Bush is capable of picking an extremely conservative judge who will take the United States back to the "neanderthal" era. The way that Bush can assuage the fears of mainstream Americans is to remind voters that he will pick a judge who will make sure their homes are protected from a greedy government in light of "Kelo v. City of New London", the now infamous eminent domain case.


Unfortunately, the modern era of judicial nominations has ushered in high-tech, savvy and cynical partisans on both sides trying to get the upper hand. Since this is the nature of the beast, conservatives must employ effective tactics to make their desired judicial nominees more palatable to the public at large. Average Americans do not pay close attention to Supreme Court activities. But, they do know about controversial cases concerning hot button social issues that have made conservative judges like Scalia, Rehnquist and Thomas household names (for all the wrong reasons). Liberal judges like Ginsburg, Stevens, Souter and Breyer are practically all but unknown.

Conservatives should use the heightened awareness of conservative judges to highlight the fact that these judges were most concerned by the implications of "Kelo". Most Americans do not plan on getting an abortion but they do worry about the prospect of their home being taken away from them for arbitrary reasons. Americans want the status-quo on social issues (keeping abortion legal) - not because they support those causes - they do not want to endure inevitable upheaval and fighting on both sides of the political spectrum. However, even the most jaded Americans who don't regularly vote in elections will do whatever it takes to keep and fight for their homes. "Kelo" has the potential to provoke a more visceral reaction than any other case in this decade - a decade dominated by important national security issues and war questions during the War on Terror.


Conservatives must do more to remind Americans that the unpopular "Kelo" decision was decided by liberal, activist judges. Not in recent memory has a case decided by liberal judges caused more alarm across a wide cross-section of average Americans. They were most likely shocked to learn that the constitution (the 5th Amendment) even provides for legal takings for purposes of "public use" justified by "just compensation." However, now that homes can be taken away for purposes of an amorphous and ambiguous "public purpose" Americans of all incomes, races and political persuasions are justifiably worried.


When conservatives face off against liberals on talking-head programs, they must use "Kelo" as a trump card in showing that President Bush's nominees will make sure that normal Americans can rely on conservative judges to protect their homes from a dangerously encroaching government.

If homeowners feel that obstructionist Democrats utilizing the filibuster and other delaying tactics are insensitive to their concerns then that will engender sympathy and support for President Bush and his nominee. Keeping one's "castle" is an eminently important goal of conservative, moderate and liberal homeowners.

What I wrote was a political analysis of how conservatives can use "helpful, effective spin" to advance the efforts of President Bush and his Supreme Court nominee.

If you want to read excellent, insightful legal analysis of "Kelo v. City of New London" check the following,

1) Mirror of Justice's (MOJ) Prof. Rick Garnett on Kelo's potential trouble for tax-exempt church property

2) MOJ's Prof. Mark Sargent says "I do get quite emotional about the destruction of communities in the name of economic development."

3) MOJ's Prof. Rick Garnett also wrote in another piece, A regime that permits this result does not respect private property, and -- therefore -- does not really respect subsidiarity or community.

4) SCOTUS Blog's Prof. Nicole Garnett on reactions through legislative Fix. And also her takes on "community outrage" and "rational basis" review.

5) SCOTUS Blog's Prof. Marty Lederman on "just compensation"

Other blogs commenting on the news about Justice O'Connor, Right Wing News, Drink This..., Wizbang, Captains Quarters, Glenn Reynolds, SlantPoint, Legal XXX, GOP Bloggers on Nancy Peolsi vies of Sup Ct decisions, on O'Connor, Blogs for Bush, Michelle Malkin.


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