Category — Eminent Domain

I am proud to say that private property rights are alive and well in the United States even if the Supreme Court doesn’t agree. The Kelo vs. New London decision has set off a wave of legislation and court rulings rejecting Kelo’s redefinition of “public use” in the Takings clause. The Ohio Supreme Court joined the chorus in a 7-0 verdict rejecting the notion that economic development constitutes a valid public use. There is still work to be done, but important steps are being taken.

OpinionJournal.com has a piece today about eminent domain, and how to, or how not to take property for development.

The story is not an in depth analysis, but an overview on how one city, Anaheim, CA, has managed to move towards successfully revitalizing its downtown areas without stripping people of their private property. By working with, not against the property and business owners, Anaheim is seeing successes.

The story also talks of Garden Grove, CA as an example of failure in their efforts at revitalization. They tried the same old ideas (take some property, try to build a Casino, with Native Americans of course, issue some public debt to help out, etc).

Take Garden Grove, an aging working-class city of gaudy strip malls and tract houses 34 miles south of Los Angeles. In 2002, officials planned to bulldoze a large, decent neighborhood to make way for a theme park, issuing bond debt to finance subsidies to help its developer. The project failed amid community protest; so the local government moved on, this time attempting to turn city-owned land over to a group of Indians who would work with a Las Vegas developer to build a casino.

Then there is the Anaheim plan:

Economic redevelopment is a serious, complex issue, but it isn’t always done this way; and Anaheim, just north of Garden Grove, is proving it. Although the community faces similar problems, its city council, led by Republican Mayor Curt Pringle, is taking a more freedom-friendly approach to revitalization: protecting property rights, deregulating land uses, promoting competition, loosening business restrictions and lowering taxes.

Anaheim’s old downtown was obliterated in the 1970s through past uses of eminent domain and urban renewal. Now, the city (population: 328,000) wants to build a new downtown, and the target location is called the Platinum Triangle, an area of one-story warehouses near Angel Stadium. In the typical world of redevelopment, officials would choose a plan and a developer, offer subsidies and exclusive development rights, and exert pressure on existing property owners to leave the area. Instead, Anaheim created a land-value premium by creating an overlay zone that allowed almost any imaginable use of property. Because current owners could now sell to a wider range of buyers, the Platinum Triangle is booming, with billions in private investment, millions of square feet of office, restaurant and retail space, and more than a dozen new high-rises in the works.

The area is developing quickly, without controversy and without a single piece of property taken by eminent domain. Early signs point to an enormous success. “Too often, I hear my colleagues in local government . . . say that Kelo-type eminent domain and redevelopment policies are their only tools to revitalize cities,” Mr. Pringle recently said. “I have a simple message . . . Visit the Platinum Triangle.”

Of course, this line is the kicker for all local zoning officials. Zoning can be the life and death for some upstarts businesses. We have all seen or heard of people who have applied for zoning variances only to be treated like they were asking for permission to open a crack house. The current administration in Anaheim gets it.

The previous planning commission and city council were harsh on small businesses seeking variances; the new council (which took office in December 2002) began overturning one commission decision after another, with the goal of giving local residents and businesses as much leeway as possible.

The Anaheim model should be the way all cities and towns get it done.

As some readers may have noticed, I have been engaged in a running dialogue with Optimistic Patriot regarding the meaning and application of the Fifth Amendment’s “takings clause,” to wit:

“[n]or shall private property be taken for public use, without just compensation.”

The debate has arisen (it comes as no surprise) in the context of the Supreme Court’s recent decision in KELO V. CITY OF NEW BRITAIN, where the Court upheld the eminent domain power of the City to take private properties in the context of a “economic development plan” in which some private property was to be given over to other private parties for development.

Pat (as I have endearingly referred to him) takes what I would call (I hope he thinks fairly) a “strict constructionist” approach to the meaning of the term “public use,” calling upon the immortal words of Justice Chase uttered in 1796:

An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Interestingly, the case in which Justice Chase’s words appeared had nothing to do with the power of eminent domain – in fact the Congress did not enact a federal statute governing the federal government’s practice until 1888. Act of Aug. 1, 1888, ch. 728, 25 Stat. 357. See 1 Nichols’ The Law of Eminent Domain Sec. 1.24 (J. Sackman, 3d rev. ed. 1973). Consequently, Justice Chase’s remarks constitute what is called “dicta,” made for the purpose of articulating broader principles at issue in that case (which involved the power of the state of Connecticut to enact an “ex post facto” law), but without any particular legal effect. And lacking any particular set of facts against which the language is applied, it is impossible to discern what is was that Justice Chase abhorred.

Another interesting fact (about which I am certain Pat will vehemently disagree), articulated in the very first Supreme Court case that dealt with the subject, is that “the right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.” MISSISSIPPI & RUM RIVER BOOM CO. v. PATTERSON, 98 U.S. 403 (1878).

Applying the sovereign right of eminent domain to the states, “The clause found in the Constitutions of the several States providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance.” Id.

And, according to the PATTERSON case, this power does not limit the sovereign to exclusive ownership of the property so taken:

“The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested.” Id.

The question whether a particular intended use is a public use is clearly a judicial one, CITY OF CINCINNATI V. VESTER, 281 U.S. 439, 444 (1930), but the Court has always exercised a high degree of deference to the legislative determination. So, when Congress created the Tennessee Valley Authority (a private entity) and gave it authority to take private property for its mammoth dam project, the Supreme Court upheld Congress’s determination that such was a public use. U.S. EX REL. TENNESSEE VALLEY AUTHORITY v. WELCH, 327 U.S. 546 (1946).
Accord, BERMAN V. PARKER, 348 U.S. 26 (1954): ”Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of government–or so the Congress might conclude.” Id. at 33-34.

While all of the attention has been paid to Kelo recently, perhaps the most dramatic example of the Court’s involvement in the public-private issue came over twenty years ago in HAWAII HOUSING AUTHORITY v. MIDKIFF, 467 U.S. 229 (1984). Here is a description of the statutory scheme involved in that case:

To reduce the perceived social and economic evils of a land oligopoly traceable to the early high chiefs of the Hawaiian Islands, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), which created a land condemnation scheme whereby title in real property is taken from lessors and transferred to lessees in order to reduce the concentration of land ownership. Under the Act, lessees living on single-family residential lots within tracts at least five acres in size are entitled to ask appellant Hawaii Housing Authority (HHA) to condemn the property on which they live. When appropriate applications by lessees are filed, the Act authorizes HHA to hold a public hearing to determine whether the State’s acquisition of the tract will “effectuate the public purposes” of the Act. If HHA determines that these public purposes will be served, it is authorized to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set by a condemnation trial or by negotiation between lessors and lessees, the former fee owners’ “right, title, and interest” in the land, and may then sell the land titles to the applicant lessees.

In a unanimous opinion, the Court held

The Act does not violate the “public use” requirement of the Fifth Amendment. Pp. 239-244.

(a) That requirement is coterminous with the scope of a sovereign’s police powers. This Court will not substitute its judgment for a legislature’s judgment as to what constitutes “public use” unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause. Here, regulating oligopoly and the evils associated with it is a classic exercise of a State’s police powers, and redistribution of fees simple to reduce such evils is a rational exercise of the eminent domain power. Pp. 239-243.

(b) The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, hat must pass scrutiny under [467 U.S. 229, 231] the Public Use Clause. And the fact that a state legislature, and not Congress, made the public use determination does not mean that judicial deference is less appropriate. Pp. 243-244.

It is entirely ironic that Justice O’Connor penned the HHA unanimous opinion, and twenty years later wrote the dissent in Kelo, reciting Justice Chase’s words from 1796. She says:

“To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings ‘for public use’ is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.”

Justice O’Connor rejected out of hand the notion that “economic development” could be legitimately determined by a state legislature to serve a public purpose (even, one must assume, if the land taken were to be designated as public parkland in the scheme of the surrounding private development?), but was comfortable with the “public purpose” to be served in the HHA case:

In Midkiff, we upheld a land condemnation scheme in Hawaii whereby title in real property was taken from lessors and transferred to lessees. At that time, the State and Federal Governments owned nearly 49% of the State’s land, and another 47% was in the hands of only 72 private landowners.

Concentration of land ownership was so dramatic that on the State’s most urbanized island, Oahu, 22 landowners owned 72.5% of the fee simple titles. Id., at 232. The Hawaii Legislature had concluded that the oligopoly in land ownership was “skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare,” and therefore enacted a condemnation scheme for redistributing title. Ibid.

There is the basis for the “public use” – to remedy the skewing of the residential fee simple market and its effect on land prices.

If that is indeed a legitimate public use, it seems to me that an urban redevelopment scheme may be based upon the exact same principles.

In earlier back-and-forth between us, Pat closed his opinion with the simple statement that giving private property to Marriott for a hotel cannot in any circumstances be a public use.

But I want to test the foundation of his position.

What if, for instance, the private property taken were highly desirable waterfront property in an urban location upon which the public currently had no right of access, and the economic development scheme required the private developer to incorporate a significant public park area which would open up the land to public use? It seems to me that is at least as legitimate a determination of public use as O’Connor found appropriate in HHA.

What is clear is that there is over a hundred years of precedent that, contrary to Justice Chase’s apparently simplistic denouncement, recognizes that “public use” does not equal “public fee ownership,” and the determination of what is “public use” is a legislative one, not a judicial one.

And that, my friends, is how it should be, in my humble opinion.

Supreme Court Justice David Souter’s hypocrisy knows no bounds these days:

“The centuries of special protection for the privacy of the home are over.” –Supreme Court Justice David Souter, writing for the majority in Georgia v. Randolph, on what would happen if the dissenting views of Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas were enacted.

Didn’t Souter already invalidate “protection for the privacy of the home” when he ruled the govt can take it from you in Kelo?

At the risk of beating a dead horse, I am compelled to parry OpPat’s latest thrust on the eminent domain issue.

In The Takings Clause, Chapter 3 (below), Pat argues that “the Fifth Amendment should be interpreted how it was intended when it was adopted,” and refers to Justice O’Connor’s dissenting opinion in Kelo, wherein she quotes Justice Chase’s opinion from Calder v. Bull, decided in 1798 (hard on the heels of the ratification!). Justice Chase was there expressing his outrage of the government taking property from one owner and giving it to another (it is one of the great idiosyncrasies of jurisprudence that human beings are referred to in such impersonal terms as “A” and “B,” but real estate is referred to as “Blackacre” or “Greenacre”).

Pat then remonstrates, “Justice Chase provides clear insight and precedent into the meaning of the Takings Clause a century and half before Justice Douglas wrote Berman. If the Constitution is to have any value in protecting our rights, it must be anchored in the Amendment process and the meanings of the Amendments at the time they were adopted.”

So what was the original intent of the framers? The amendment says:

“…nor shall private property be taken for public use, without just compensation.”

It does not say “taken from one person and given to another.” It does not even say “without due process.” It just says “for public use,” and “without “just compensation.” If one is to following the well-established rules of statutory construction (that “words are to be giving their ordinary meaning”), an argument could be made that, as long as the public has the right of access and use, and the property owner is paid fair market value, the Fifth Amendment is not offended.

To argue the “original intent” angle as Pat suggests, one must maintain that there can be no public purpose/use for which a taking is constitutional if the scheme involves the eventual ownership of property by a private party. Certainly, in 1796, Justice Chase (or any of the framers, for that matter) could not have envisioned that the means of obtaining land for public purposes would evolved in many cases (by necessity, if not simply good practice) into privately-owned, publicly accessed development.

This will, of course, look to Pat and others like that canard of liberal jurisprudence, the theory of “the living document,” one that must be reinterpreted in light of the evolving nature of our culture. But I protest, it is not. For another of the tenets of statutory construction in addition to giving words their ordinary meaning is to apply those words so as not to produce “an absurd result.” That would be the result if strict adherence with the “A” to “B” principle were required.

For instance, does this constitutional prohibition mean only that public property cannot be deeded to a private party? Can the government take one’s land and enter into a long term lease with another private party? Why surely not. Justice Chase’s statement said “a law that takes property from A and gives it to B.” That means deed, lease, gift — anything that places the property under the dominion or control of another (I’ll resist arguing that “give” does not mean “sell” or “lease” — absurdity has its limits).

If that is to be the law, then important advances in the development of public infrastructure financing will have to be scrapped entirely — at an overwhelming cost to the taxpayers.

Take, for instance, a road project close to home: the wholesale widening and improvement of the Route 3 corridor from Route 128 to the New Hampshire border by a private party (Modern Continental). This project, at a cost of almost $400 million, is being achieved at no cost to the taxpayers, through the employment of an innovative financing plan, a key feature of which involves the leasing of property to a private non-profit corporation and the ceding of control and development rights for commonwealth-owned land to the developer. The developer would be entitled to pursue real estate development on Commonwealth land and receive a portion of the revenue stream.

Surely this type of financing scheme would not have been conceivable in Justice Chase’s day, and yet would be prohibited under the strict application of Justice Chase’s prohibition.

Here’s something to chew on that isolates the argument further: Would the Kelo parties have had a case at all if, in the scheme of the development plan that took their homes, the ground underneath them was to be nominally owned by the city and used as, say, sidewalks, roads or parks that were a portion of the private development plan? A library? Even following Pat’s desired precedent, could not the city have devised a development plan that achieved its purpose and took the plaintiffs’ properties without ceding them to the developer?

Probably. But that would not satisfy those who are so upset about this ruling.

I think the truly visceral antipathy to the Kelo case has nothing to do with “public” versus “private.” It has little to do with the Constitution either. I think it has to do with the fundamental principle, written in no law, that “a man’s home is his castle,” that “ownership is nine-tenths of the law,” that the government shouldn’t be able to take something from me under any circumstances. Sort of a more civilized Ruby Ridge thing.

That’s a good thought. It’s just not the law.

My new blogmate, Optimistic Patriot, continues the discussion about Kelo v. City of New London, and I am happy to engage him.

OpPat contends that “What distinguishes the Kelo case from others is the town’s use of its eminent domain power to deliver the property to another private owner.” As I asserted in my comment to his original post, that is not the case – Kelo breaks no new ground on the subject, and in fact, only follows the precedent that was established in 1954 by Berman v. Parker.

In Berman, the facts couldn’t be more on point:

Appellants own property in Area B at 712 Fourth Street, S.W. It is not used as a dwelling or place of habitation. A department store is located on it. Appellants object to the appropriation of this property for the purposes of the project. They claim that their property may not be taken constitutionally for this project. It is commercial, not residential property; it is not slum housing; it will be put into the project under the management of a private, not a public,agency, and redeveloped for private, not public, use.

The Berman decision upheld Congress’s power to defined what is the police power, and affirmed that it is the legislative branch, not the judicial, that makes such determinations:

We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia (see Block v. Hirsh, 256 U.S. 135) or the States legislating concerning local affairs. See Olsen v. Nebraska, 313 U.S. 236; Lincoln Union v. Northwestern Co., 335 U.S. 525; California State Association v. Maloney, 341 U.S. 105. This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.

And well it should be.

On the subject of private versus public ownership, the Berman Court had this to say:

Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here, one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress, and Congress alone, to determine once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.

These words, penned (ironically) by no less than the “ultra-liberal” Justice William O. Douglas, are more relevant and correct today than they were fifty years ago. What conservative today would dare to argue that the public sector more appropriately expends public money to redevelop property than the private sector does with its own funds? The paradigm of urban redevelopment has changed dramatically since the 1950’s, with direct federal and state investment ceding (properly, in my opinion) to tax-incentivized investment of private capital. In today’s economics, no one can argue that the public sector is the most appropriate steward of community development or redevelopment. And just because the development is effected by private parties does not make the purpose any less public. Public walkways and parks, job opportunities, economic activity, enhancement of a community’s attractiveness — these are all legitimate public purposes, no matter whose name appears on the property deed.

Even Justice O’Connor’s dissent acknowledges this fact:

But “public ownership” and “use-by-the-public” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use.

For me, the most important facts recited in the Kelo decision are these:

After receiving initial approval from the city council, the NLDC continued its planning activities and held a series of neighborhood meetings to educate the public about the process. In May, the city council authorized the NLDC to formally submit its plans to the relevant state agencies for review.2 Upon obtaining state-level approval, the NLDC finalized an integrated development plan focused on 90 acres of the Fort Trumbull area….. ….The city council approved the plan in January 2000, and designated the NLDC as its development agent in charge of implementation. The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City’s name.

Here it is demonstrated that there were (a minimum of) five separate public processes during which the redevelopment plan was subjected to public scrutiny and acted upon by democratically-elected officials. Residents of the City of New London had the power to influence their decisions and actions and hold them accountable for the result. Were the reactions of New London voters as adamant and vituperative as those of many conservatives across the country, it is quite apparent that the redevelopment plan would not have made it through two separate votes of the City Council.

The dissent in Kelo argued that the majority opinion broke new ground when it expanded the Berman rationale to include “economic development” as a public purpose. Berman’s department store, unblighted as it was, was nonetheless surrounded by slums, the dissent observed, and therefore, the legitimate public purpose was not the redevelopment of the area, but the elimination of “harmful use,” i.e., habitation by poor people. But this observation necessarily makes a judgment on quality of life that is the legislature’s, not theirs, to make. If the people of New London believe that the City Council’s perception on quality of life was incorrect, it was perfectly within their province to participate in the process while that issue was on the agenda.

I do not argue that the result in this situation is correct – that Ms. Kelo and her neighbors were justly disenfranchised, or that the New London City Council got it right. I argue that “economic development” is a legislative, not a judicial, issue; that its definition is made in a public, democratic process by elected representatives of the people they govern. I argue that “economic development,” properly defined, is most definitely a “public purpose.”

And I say that, when people do not speak up, they lose their right to complain. And when their elected officials do not listen to them, there is a remedy. It is first at the ballot box, and not necessarily at the Supreme Court.

Some interesting discussion has developed regarding the Takings clause in the Fifth Amendment which reads:

“..nor shall private property be taken for public use, without just compensation.”

The rule seems rather clear. Just compensation must be offered; the property in question must be taken “for public use”. Kelo vs New London revolves around the definition of “public use”. The common understanding of the words in question might include highways, fire stations, water works, city halls, etc. What distinguishes the Kelo case from others is the town’s use of its eminent domain power to deliver the property to another private owner.

Justice Stevens’s deference to government planning is particularly disturbing:

The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue.

Virtually any project could be shown to provide more tax revenue. Justice Stevens broadened the definition of “public use” to such an extent that the Takings Clause has virtually no meaning. Justice O’Connor rightfully notes this in her dissent:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

Even if one were to cynically note the text is silent about takings of private property for other private use, the Ninth Amendment provides a clear answer here:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because the Constitution does not specifically enumerate a right, we are not to interpret that right as given to the government. This case was poorly decided and clearly violates the Constitution.

Nersciguy raises an interesting issue regarding my post on Alabama Supreme Court Justice Tom Parker.

Roper (finding as unconstitutional the death penalty for under 18 convicts) & Kelo (finding as constitutional the use of eminent domain for the support of private development) were two of the worst non-Constitutional recent decisions by the Supreme Court; that said, state supreme courts should follow these rulings in order to uphold the rule of law until a future Supreme Court reverses the bad decision.

Waiting for the Supreme Court to correct itself is the proper path in the vast majority of cases. Public confidence in the judiciary is a vital part of a properly functioning legal system and suggestions of judicial sedition are not to be taken lightly. However, why swear an oath to defend the Constitution if there are no circumstances under which you might be called upon to do so?

There is certainly leeway for interpreting the Constitution, but this does not give the Court absolute discretion to incorporate foreign law or rewrite sections of the document as they see fit. In some respects, waiting for the Court to correct itself gives them legislative power and diminishes the Constitutional role of the Congress. I would argue that upholding the law means upholding the Constitution and may conflict with what the Court says it means. Having said all of that though, it would have to be a truly landmark decision changing the fundamental nature of the Constitution for me to support such measures, but it does make for interesting debate.

Thanks for your thoughtful response.

Democratic House Leader Nancy Pelosi exposed in full detail how liberals hide behind the Supreme Court on issues they agree with, but know they cannot publicly endorse. This outrageous exchange on the eminant domain decision says it all:

• Q: Could you talk about this [eminant domain] decision? What you think of it?
• Ms. Pelosi: It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken. It’s an elementary discussion now. They have made the decision.
• Q: Do you think it is appropriate for municipalities to be able to use eminent domain to take land for economic development?
• Ms. Pelosi: The Supreme Court has decided, knowing the particulars of this case, that that was appropriate, and so I would support that.

God has spoken? Did he part the Potomac and tell the justices to ban public displays of the ten commandments, as well? Well, at least we know who liberals pray to at night - John Paul Stevens and David Souter.

Red State has some inside info on how the Supreme Court retirement process is likely to play out this summer:

• Rehnquist is out. It’ll happen on or about July 5 [Ed. — but why not do it earlier so the Gang can have a 3 day weekend to mull the implications and feel out the Senate before announcing a replacement on Tuesday?!] POTUS is leaning toward Luttig.
• If, however, O’Connor beats CJ to the White House (though POTUS & Co., Inc. does not expect her till Labor Day), we go with Garza first and Luttig second. If Luttig doesn’t want it, we go with John Roberts next — Rehnquist is pushing Roberts. Roberts is a
  Rehnquist protege.
• If O’Connor does go at Labor Day and women are not back on board GWB’s bus (a current POTUS & Co., Inc. concern), he scraps Garza and goes with Edith Brown Clements, an under the radar conservative from the 5th Circuit.
• If any other spot opens, he goes with (a) Gonzales or (b) a sitting United States Senator from a state that currently has a Republican governor. Oh, and there just might be a third spot opening, but not until after January 1.
• Your guess is as good as mine on that one. Until then people in New York and Chicago will be speculating. Source does tell me that POTUS1 really, really, really wants Gonzales and “POTUS is POTUS” but knows the political calculus of a Gonzales nomination would be devastating to the base and to the 14 who have to either vote for a possible Souter or vote against the first Hispanic nominee and then go on and try to get re-elected next year.

I am not sure I buy any of this, but I guess speculation is all we have at this point. Bush needs to get over Gonzales. After last week’s horrible eminent domain ruling, conservatives would have all the ammo they needed to defeat him, humiliate the President, and hand the Democrats a gift going into the mid-term election.

Republicans have an enormous opportunity to capitalize off of the Supreme Court’s most recent controversial rulings. Buried in the last sentence of this USA Today article is a glaring indictment of today’s ruling:

Ten Commandments displays are supported by a majority of Americans, according to an AP-Ipsos poll. The poll taken in late February found that 76% support it and 23% oppose it.

AND while there is no polling on the eminent domain ruling, I am not sure how the MSM could spin a question where respondents would agree that state governments have the right to take their homes away. Republicans can bludgeon Democrats over this next year and in 2008 if they just attack the issue. Here’s how:

• President Bush MUST keep his promise to appoint conservative judges in the mold of Scalia and Thomas. Anything less could cause a backlash among Republican base voters while simultaneously providing cover for red state Democrats like Mary Landrieu (LA) and Kent Conrad (ND). Essentially, it’s an effort to restore sanity to the Court and dare Democrats to fight him on it.
• Senate Republicans need to focus on the issues judges rule on, not the logistics of the Senate. Democrats successfully changed the subject to “minority rights” in the Senate from discussing what constitutes extraordinary circumstances. If a vacancy occurs on the high Court, Republicans have a second chance in the PR battle. If they screw it up, there won’t be a third.
• The GOP has to link Democrats who vote against Bush judges with these liberal rulings. Moderates like Evan Bayh (IN) can claim to support public displays of religion, but hide behind the Court. Conservatives have to connect the dots.
• Attack the MSM’s agenda of focusing solely on the issue of abortion and tie it around red state liberals’ necks. Is there any doubt where a poll that showed 76% of Americans in favor of Roe would appear if one existed? Translation - shoot the lying messengers.
• The GOP has to unite on a theme to pushing for conservative judges - conflicting messages will be exploited and make blue state Republicans nervous. Like them or not, we need them in this fight. On the other hand, hold conservatives like Lindsey Graham accountable in primaries for not representing their constituents. No one should be voting against their interests, especially when it’s against us.
• Don’t give up. The Court is old - these people won’t be around forever. Republicans have to stay focused on a goal that could take years to achieve.

Democrats have judicial politics down to a science. If they spent half the time developing a plan in the Middle East as they did worrying about the Courts, we’d have world peace by now. Their liberal supporters have gotten everything they wanted this term. They will now accuse critics of these rulings of starting a culture war or Christian theocracy. It’s a trap to scare us away from the debate. Do we want another twenty years of an “O’Connor” court or do we want one that respects the constitution and the rights of states to govern themselves?