Kelo is the key to a new Supreme Court

Few Supreme Court rulings have resonated with the average person in as chillingly fundamental a manner as has the recent Kelo v New London eminent domain ruling that awarded unprecedented authority to the Government's right to seize private property for private use. Unlike many of the Court's rulings, which concern themselves with issues that are either of only peripheral or theoretical importance to most people, this ruling affects what many consider to be at the very foundation of the American way of life: the right own and hold their own property, free of external interference.

The announcement of Sandra Day O'Connor's retirement throws this issue—and the Court's liberal—conservative balance—into sharp relief. Conventional wisdom held that Chief Justice William Rehnquist would be the first member of the current court to resign, because of his ongoing battle with thyroid cancer. Rehnquist was a reliably conservative—leaning vote, and it was felt that President Bush would nominate and be 'allowed' by his Democratic opponents to appoint a conservative to replace him, as replacing a conservative with a conservative would not upset the current pro—Roe balance of the court. The Democrats would make a big public spectacle of the whole process for maximum effect and employ every gratuitous, histrionic, anti—conservative, anti—Bush attack imaginable, but in the end, they'd let Rehnquist's successor through. Most observers felt the real fight would be after Rehnquist, when O'Connor retired, as that judicial slot could, in fact, shift the court's stance on many critical issues.

But Sandra Day had other ideas. Her retirement before Rehnquist's completely re—shuffles the deck. As a so—called 'swing' voter, O'Connor was viewed as a consensus—builder, a Justice neither consistently conservative nor ultra—liberal, but instead, one who often looked for the middle ground of compromise. She voted to retain the essential integrity of two of the Left's most cherished positions—on abortion and affirmative action—and was therefore well—tolerated by the liberal wing even if her positions on other issues ran to the right of center. 

What is even more intriguing is how her positions on abortion and affirmative action juxtapose with her dissenting opinion in the Kelo v New London case. For the classic 'limousine liberal' Democrats—affluent, well—educated suburban and city dwellers—issues like affirmative action are favored because it makes them feel good in the abstract, at least until it affects them directly, and then they take extraordinary steps because, after all, their specific situation is 'different.' Although unspoken and essentially unmeasurable, it also stands to reason that a large component of liberals' support for abortion stems from their desire to retain ultimate control over their own social image should their precious 16—year old make a mistake and potentially embarrass them at the next PTA meeting or on the back nine.

However...homeownership is something else altogether. This issue hits home with a verity and immediacy unapproached by other more nebulous, hypothetical concepts. The idea that a liberal—leaning Supreme Court could rule against individual property rights and in favor of socialistic government seizure of private property for the purpose of the 'public good,' is enough to scare anyone, liberal or conservative. President Bush would do well to include a spirited highlight and defense of O'Connor's Kelo dissent in his presentation of the new nominee, with the not—so—subtle implication—although in a politically agile and deft manner—that if the liberal advocacy groups such as MoveOn.org are successful in blocking a conservative—leaning Supreme Court judge, then everyone's fundamental property ownership rights are in jeopardy. 

How will the liberal PACs present this situation to Mr. and Mrs. Clinton—Kerry—Kennedy supporter?  'The liberals on the Court have ruled that your oh—so—special downtown duplexes and suburban estates can be leveled to make room for a strip mall if the local government decides as such, but at least you can sleep at night knowing that at some big—name university, a race quota is being satisfied.' How will Democratic Senators defend this? What kind of public support can they expect if the issue is framed as admissions quotas and face—saving abortions vs. the government taking your property?

The more conservative Supreme Court justices—O'Connor, Rehnquist, Scalia, and Thomas—are on record as opposing this. The liberal ones passed it. O'Connor's resignation puts the entire left—right balance issue front and center, without the 'dress rehearsal' process that a Rehnquist resignation would have afforded. It promises to be fascinating to see the Kerry—Clinton—Kennedy cabal oppose a conservative—leaning Supreme Court nominee when the issue is the seizure of private property, not abortion or affirmative action.

Steve Feinstein is a frequent contributor.

Few Supreme Court rulings have resonated with the average person in as chillingly fundamental a manner as has the recent Kelo v New London eminent domain ruling that awarded unprecedented authority to the Government's right to seize private property for private use. Unlike many of the Court's rulings, which concern themselves with issues that are either of only peripheral or theoretical importance to most people, this ruling affects what many consider to be at the very foundation of the American way of life: the right own and hold their own property, free of external interference.

The announcement of Sandra Day O'Connor's retirement throws this issue—and the Court's liberal—conservative balance—into sharp relief. Conventional wisdom held that Chief Justice William Rehnquist would be the first member of the current court to resign, because of his ongoing battle with thyroid cancer. Rehnquist was a reliably conservative—leaning vote, and it was felt that President Bush would nominate and be 'allowed' by his Democratic opponents to appoint a conservative to replace him, as replacing a conservative with a conservative would not upset the current pro—Roe balance of the court. The Democrats would make a big public spectacle of the whole process for maximum effect and employ every gratuitous, histrionic, anti—conservative, anti—Bush attack imaginable, but in the end, they'd let Rehnquist's successor through. Most observers felt the real fight would be after Rehnquist, when O'Connor retired, as that judicial slot could, in fact, shift the court's stance on many critical issues.

But Sandra Day had other ideas. Her retirement before Rehnquist's completely re—shuffles the deck. As a so—called 'swing' voter, O'Connor was viewed as a consensus—builder, a Justice neither consistently conservative nor ultra—liberal, but instead, one who often looked for the middle ground of compromise. She voted to retain the essential integrity of two of the Left's most cherished positions—on abortion and affirmative action—and was therefore well—tolerated by the liberal wing even if her positions on other issues ran to the right of center. 

What is even more intriguing is how her positions on abortion and affirmative action juxtapose with her dissenting opinion in the Kelo v New London case. For the classic 'limousine liberal' Democrats—affluent, well—educated suburban and city dwellers—issues like affirmative action are favored because it makes them feel good in the abstract, at least until it affects them directly, and then they take extraordinary steps because, after all, their specific situation is 'different.' Although unspoken and essentially unmeasurable, it also stands to reason that a large component of liberals' support for abortion stems from their desire to retain ultimate control over their own social image should their precious 16—year old make a mistake and potentially embarrass them at the next PTA meeting or on the back nine.

However...homeownership is something else altogether. This issue hits home with a verity and immediacy unapproached by other more nebulous, hypothetical concepts. The idea that a liberal—leaning Supreme Court could rule against individual property rights and in favor of socialistic government seizure of private property for the purpose of the 'public good,' is enough to scare anyone, liberal or conservative. President Bush would do well to include a spirited highlight and defense of O'Connor's Kelo dissent in his presentation of the new nominee, with the not—so—subtle implication—although in a politically agile and deft manner—that if the liberal advocacy groups such as MoveOn.org are successful in blocking a conservative—leaning Supreme Court judge, then everyone's fundamental property ownership rights are in jeopardy. 

How will the liberal PACs present this situation to Mr. and Mrs. Clinton—Kerry—Kennedy supporter?  'The liberals on the Court have ruled that your oh—so—special downtown duplexes and suburban estates can be leveled to make room for a strip mall if the local government decides as such, but at least you can sleep at night knowing that at some big—name university, a race quota is being satisfied.' How will Democratic Senators defend this? What kind of public support can they expect if the issue is framed as admissions quotas and face—saving abortions vs. the government taking your property?

The more conservative Supreme Court justices—O'Connor, Rehnquist, Scalia, and Thomas—are on record as opposing this. The liberal ones passed it. O'Connor's resignation puts the entire left—right balance issue front and center, without the 'dress rehearsal' process that a Rehnquist resignation would have afforded. It promises to be fascinating to see the Kerry—Clinton—Kennedy cabal oppose a conservative—leaning Supreme Court nominee when the issue is the seizure of private property, not abortion or affirmative action.

Steve Feinstein is a frequent contributor.