Eminent Domain:

What's Needed in Next Supreme Court Justice

JAY AMBROSE / Opinion / San Francisco Examiner 4jul2005

[Also see: Kelo v. City of New London]

So, said one critic of a Supreme Court ruling on eminent domain, let's apply this new principle to the New Hampshire farmhouse owned by Justice David Souter. Let's have the local government take it from him with compensation and turn it over to a private interest for the construction of a hotel, which will pay higher taxes and boost local employment.

It would be poetic justice if this very thing happened, but even if it did — and it won't — it would not solve the problem of Supreme Court justices who not only ignored precedent, common sense and the actual language of the Fifth Amendment in this case, but who do the same sort of thing all the time, practically forgetting the existence of the U.S. Constitution.

The answer to this smug, autocratic debasement of the basic law of the land is for President Bush to nominate a capable jurist who esteems the Constitution to replace Justice Sandra Day O'Connor, who has announced plans to leave the court, and for the Senate to give its consent in an up-or-down floor vote if he does.

The timing is perfect. The 5-4 ruling giving New London, Conn., the authority to use eminent domain powers simply to transfer property from private homeowners to rich, powerful private interests, and to say this qualified as a "public use" under a clause in the Fifth Amendment, is the kind of unconscionable absurdity anyone can understand. O'Connor certainly understood it.

In a dissent, she wrote, "All private property is now vulnerable to being taken and transferred to another private owner so long as it might be upgraded. … The specter of condemnation hangs over all property." The phrase "public use," she pointed out, means just that — using the property for a public highway or a public school. To drag in this new meaning was to strip away vital constitutional protections of the citizenry always previously recognized.

On a court divided between several justices who believe in meticulous constitutional interpretation and several justices who barely take note that there is such a document, O'Connor has been considered a "swing vote," someone who would sometimes side with one side, sometimes with the other. In her stead install someone who routinely considers his or her own individualistic sense of justice and morality above a Constitution regarded as inapplicable to the modern world, and you could have a long series of decisions that will either void rights or usurp legislative prerogatives that could move us ever closer to establishing judges as the oligarchic rulers of America, unanswerable to anything or anyone.

It is not a given that Bush will nominate a thoroughgoing constitutionalist. He will go with a conservative, but not all conservatives are dedicated to constitutional meaning any more than all liberals turn their backs on it. His record on most judicial nominations to date is pretty good, however. The names being bandied about are mainly heartening. He must stand up to pressures from both left and right to put other considerations ahead of legal philosophy, talent and integrity, just as the Republicans in the Senate must fight the good fight if necessary, refusing to be bowled over by liberals who have made a holy cause out of an unprecedented misuse of the filibuster.

Let Souter keep his home. The important thing is to have the kind of justices on the court who understand that this republic of ours can wither if those in positions of trust do not hold tightly to the principles that have made it something exceptional in the history of humankind.

Jay Ambrose, formerly an editor of two daily newspapers and a Washington, D.C.-based opinion writer, is a columnist for the Examiner newspapers. He may be reached at SpeaktoJay@aol.com.

source: http://sfexaminer.com/articles/2005/07/05/opinion/20050705_op03_justice.prt 14jul2005