For my usual Monday morning appearance at 10:20am ET (7:20am PT). Looks like we’ll be discussing the confirmation hearings of Judge Alito.
The Dems have once again threatened to filibuster or stall. The Gang of 14 has chimed in again that a filibuster will be unacceptable, and the White House, of course, has sent out a message of praise and support.
There are two questions I’m especially interested in-as I believe all of us are: his position on abortion and his position on private property. The Kelo decision has been made and there should be no problem asking his about the foundation of that decision.
If the dems don’t likehis answers about their questions or if he doesn’t answer then they have every right to give him a “no” vote. Of course, that won’t necessarly stop the confirmation, which is why they prefer to look to stopping the process entirely. As Senator Graham notes, to hold up the process is an unacceptable threat to the independence of the judiciary.
We’ll see what happens. As you know I think all politicians are the same, but perhaps moderate senators, i.e. the Gang of 14, may once again have an impact. I know those who like to play the games of Washington don’t like the Gang much, but let’s keep an open mind and see what happens.
The Kelo/private property question is one I’ll bring up on Fox this morning. It’s imperative we know where he stands and yet it is still an issue that seems to have been buried. And don’t forget–President Bush has never addressed that decision, which means he agrees with it. And Alito is set to fill O’Connor’s seat, the most passionate voice against the Kelo decision.
I worry.
In an ideal world, the personal inclinations of a Justice shouldn’t be of paramount importance. He may dislike the capital punishment or abortion or whatever, and yet still acknowledge that these practices are entirely valid under the structure of our laws and Constitution, and it’s not his place to change this. So I’d like most of all that nominees renounce judicial activism.
For the record — and I think most lawyers who have studied the matter will admit this — Roe vs. Wade was a bad court decision, in that it was pretty much made up out of whole cloth. I’m personally pro-choice, but that’s the fact. If I don’t like juducial activism, then I should be consistent. In any case, rightly or wrongly, that decision has became a foundation for all that followed, and that makes it “real”. (That’s the way the law works: Precedent becomes a model for the future.) An effort to reverse it through the courts would require judicial activism, and that’s what we must get away from; else we’ve got a government by the courts and for the courts, and we’re already much too close to that already. Here in California, our Democratic processes are continually challenged in court by whoever lost. The ACLU, those staunch defenders of civil liberties, came very close to shutting down the recall election in which Arnold became governor. This practice is crazy and dangerous, and we must put a stop to it. But don’t get me started.
Talkin Horse,
I have heard that Brown vs Board of Education was also a bad decision on the same basis as Roe vs Wade was a bad decision. I am pro-life and anti-discrimination. While it is easy for me to denouce Roe vs Wade on technical merits, it is harder to do so with Brown. Is it just me, or is there a difference between the two cases?
KELO. If I have this right (and please correct me if I’m wrong) The United States Supreme Court ruled that local government (in this case the City of New London, CT) has the “right” to seize private property (homes) of citizens for the benefit of more powerful interests, i.e., property developers.
In other words, just show the local government it can collect more taxes from a new Wal Mart in your neighborhood than it can from private homeowners and local government now has federally sanctioned permission to steal your house in favor of more lucrative corporate interests.
Tammy, do you really think that we can regain lost rights via the Supreme Court? I really doubt it. Look at what Reagan and others tried to do only to have most of their appointments change so radically over time you wouldn’t even recognize them. Also, they are all there too long without any check or balance on their activities, i.e, when they fail to honor and uphold the doctrine of separation of powers.
In my view, we have to get very seriously angry and take this on at the grass roots level. This issue can be used to educate citizens who may not yet realize that government is not nice and friendly and must be kept in its place and repeatedly taught that it will not treat “We, the People” as its servants.
On the local level two things, we are ever vigilant and fight tooth and nail against eminent domain actions. We also rid ourselves at every turn of the kinds of leadership (those in office and those running) that would even think to help perpetuate the problem.
This is really serious. It scares to watch the news and hear, night after night, about George Smith the missing honeymooner, or debates about “Merry Christmas” vs “Happy Holidays” etc., when this kind of thing is going on.
Cheers to you, Tammy, for being on top of the issues as always. Thank you and keep putting the real stuff front and center. Your website really is quite relevant and increasingly important.
“KELO. If I have this right (and please correct me if I’m wrong) The United States Supreme Court ruled that local government (in this case the City of New London, CT) has the “right” to seize private property (homes) of citizens for the benefit of more powerful interests, i.e., property developers.”
In effect, yes. The Court split 5-4, but it wasn’t the usual 5-4. Justice Stevens wrote a majority opinion essentially premised on judicial deference to legislative determinations of what constituted a public use under the Fifth Amendment’s Takings Clause; Justice O’Connor wrote a scathing dissent absout how the majority opinion undermined the entire principle of private property.
“…do you really think that we can regain lost rights via the Supreme Court?”
It’s worth trying, but with respect to eminent domain abuse, there are many other fields to play on. Kelo, after all, only establishes a bare minimum floor as a matter of federal constitutional law. The issue is being played out in the state courts, in the state legislatures, as proposed amendments to state constitutions, and in Congress (where there was a bill to deny federal funds to local governments that do this sort of thing, the fate of which I’m uncertain of). Until Kelo is overruled, its effects can still be minimized, even (hopefully) to the point of the decision becoming an academic irrelevance.
Thanks Dave and I believe that here in Texas John Cornyn has led efforts to protect people’s property. The fact is that voters hate it when government takes property from them, especially for private development, and politicians understand this. That’s “People Power.”
I did not get to hear Tammy on air this morning but I will say this much more with regard to Alito and the Supreme Court. I’d really like to hear Alito say that he thinks the Supreme Court had no jurisdiction. It always should have been Connecticut’s laws on eminent domain, not federal ones. Arguments about property seizure on the local level should be fought at the local (state) level and the Supreme Court should not have intervened.
Still, good will come from this I hope. Many states (at least half) have taken action against it. I hope you are right that Kelo will soon fade into “academic irrelevance.”
I was just listening to the State of the State address here in Idaho, my beloved home state, and the governor included in his speech as desire to set up a law prohibiting government from seizing land to give to private corporations for tax purposes. In his speech he directly named the supreme court as his inspiration for introducing this law.
“I’d really like to hear Alito say that he thinks the Supreme Court had no jurisdiction.”
Um, saying the case was wrongly decided (which I belive) is one thing; saying the US Supreme Court had no jurisdiction at all would be completely bizarre. The parties on all sides made arguments about the Takings Clause of the Fifth Amendment, i.e., a question of federal law over which no one disputed the Supreme Court’s jurisdiction.
“It always should have been Connecticut’s laws on eminent domain, not federal ones.”
No one was talking about federal statutes on eminent domain; they were talking about whether Connecticut statutes, municipal ordinances passed by the City of New London pursuant to those statues, and executive actions by the City of New London Redevelopment Authority pursuant to those ordinance themselves violated the FEDERAL constitution. They likely also made state-law arguments as well, but what the US Supreme Court ruled on were properly-presented (though then wrongly-decided) federal issues.
“Still, good will come from this I hope. Many states (at least half) have taken action against it. I hope you are right that Kelo will soon fade into “academic irrelevance.””
Kelo is the opposite of a pyrrhic victory; it is a “pyrrhic defeat” in the sense that more good may ultimately come from it (or rather, from the reaction against it) than if IJ had won the case. This is because it put the issue on the front burner, in the public eye, in a way it hadn’t been before. I truly believe it is the most politically galvanizing case since Roe v. Wade, yet unlike Roe it is galvanizing but not polarizing, since polls show that 90+% of the public thinks the Court was wrong. Even before this case, many state constitutions already contained provisions stronger than the federal Takings Clause; after Kelo, all the momentum is on the side of those who want to strengthen protections for private property still further.
Hi Dave, I’m going to begin by clarifying my position. I absolutely dispute the Supreme Court’s jurisdiction (for what it’s worth) and I do not accept that the 5th amendment applies here. I further do not appreciate that those who claim to support constitutional integrity would see it selectively enforced. Not saying that’s you Dave. I don’t know you. But “bizarre” or not, and whether “all parties involved” were all okay with it, I’m not okay with it, Dave. I would like Alito to say that he would reject the bogus incorporation doctrine in all cases.
Now, all the wherebys and wherefores aside, in other words the legal mumbogumbo that you seem to have a pretty good handle on 🙂 – This case was about the legality of expanded eminent domain (that flows from the 5th Amendment)and whether the Supreme Court will grant itself the authority to decide for cities whether it can take a person’s land and property and give it to a private developer. Again, I have to say NO Dave. That should be left to the states.
Dave, I realize that I’m not as sophisticated as you are but I think a good kick in the pants on election day will clear this matter up. After all, their officials started the problem in the first place. Let Connecticut voters clean house or live with the consequences at home. I have a feeling they’ll be some serious housework going on.
With the Supremes now involved, all states have to take action to protect ourselves from the fallout. When I say “good will come from this” I mean just that. States will take the necessary action to protect themselves in whatever way we have to from the biggest landgrabber of all – the federal government.
Now my puppy has wandered over and is licking my toes. Good grief! Take care, Dave.
Finished my work for the night or morning or whatever it is and wanted to make a final point on this issue as I’m headed out of town tomorrow night.
The “incorporation” of the federal Bill of Rights to states through the 14th Amendment is a sham and has impuned the integrity and purity of our United States Constitution. It’s given rights galore that the feds now use against the people to circumvent the power of state and local legislatures. It’s ridiculous and flies in the face of what the founders intended with regard to judicial restraint and separation of powers.
I also want to point out that the “Incorporation Doctrine” of the Fourteenth Amendment is NOWHERE in the Constitution. What is in the constitution is the tenth amendment that clearly says “powers not delegated to the United States by the Constitution and not prohibited by it to the States, are reserved to the States or to the people.”
Again, the Supreme Court has no jurisidiction in the Kelo issue. Probably many think this argment may not be practical to address the Kelo issue but in reality it would be wonderful to hear Alito speak to this issue. All I can say is that it is truly a sad day when the Supreme Court steps in to allow government such sweeping power of eminent domain that they can take a private citizens property in the name of economic development. No one is safe and we all better worry. We’ve got to take our power back at the state level and that will happen at the ballot box if elected leaders need prodding.
That’s it from me. Take care all. Maybe I’ll be back in a week or so.
OK, sorry if my characterization before was a bit much. I should have realized that overruling incorporation was where you were going. In the abstract, I can see the merits of that; however, I could not see Alito, not merely as a nominee but as a currently sitting federal judge, coming out and saying he’d do that: even if he would in the future if presented with a case where he had the opportunity to do so, for him to so state to the Senate now would be for him to violate judicial ethics by prejudging a future case that could come before him.
“But “bizarre” or not, and whether “all parties involved” were all okay with it…”
The problem here is that you’re expecting the Supreme Court to rule on an issue that was not presented to it by the parties. No one on either side argued that the Court had no jurisdiction, therefore the Court did not have that question before it.
“I also want to point out that the “Incorporation Doctrine” of the Fourteenth Amendment is NOWHERE in the Constitution.”
Not explicitly, no, but playing Devil’s Advocate here, if no provision of the Bill of Rights is read into the Due Process Clause (or the Privileges & Immuniites Clause) of the Fourteenth Amendment, then what exactly DOES that language prevent a state from doing? In other words, what does a state violation of the Fourteenth Amendment look like?
Surely it’s obvious that the Fourteenth Amendment DID change the relationship between the states and the feds to some extent; nor is saying that inconsistent with the language of the Tenth Amendment, since the Fourteenth Amendment expressly creates new federal prohibitions on state action. Merely arguing that the incorporation doctrine is wrong is not enough: you cannot be consistent yourself and then not provide an alternative reading of the Fourteenth Amendment that doesn’t turn it into a dead letter.
“All I can say is that it is truly a sad day when the Supreme Court steps in to allow government such sweeping power of eminent domain that they can take a private citizens property in the name of economic development.”
Indeed, but I can’t see that that’s simply a consequence of it having had jurisdiction to decide the issue: the Connecticut state courts had previously held similarly, both as a matter of federal law and in interpreting their own state law.
“We’ve got to take our power back at the state level and that will happen at the ballot box if elected leaders need prodding.”
Again, I agree completely. Others have suggested that this is a big sleeper issue for the ’06 election, and I both hope and expect that that’s the case.