Danithew is wondering when we’re going to begin idle speculation about who might replace Justice O’Connor. We’re happy to oblige him.
I’ve written previously that I think that the best candidate would be Richard Posner. Alas, that probably isn’t going to happen, for a number of reasons (mostly his age and the fact that conservatives don’t consider him a reliable conservative vote). Many media outlets have posted their own speculations recently. For example, Slate magazine writes that likely replacements include John Roberts, Michael McConnell, and Alberto Gonzales.
O’Connor’s retirement will have a huge effect on the Court. Her vote has been key in religion-clause cases, abortion cases, death penalty cases, and affirmative action cases, just to name a few. It will be interesting t0 see who President Bush nominates to replace her, and how that nomination might impact the Court.
So, who do you think could (or should) replace Justice O’Connor? And how do you see her retirement affecting the Court for the next several years?
ashcroft. bush loves to recycle his people inot new positions. Also, if there is goig to be a bitter battle over the nomination anyway, he might as well go whole hog.
I think he ought to nominate one of the recently confimed judges, those who were part of McCain’s last-minute deal. Dems’d have to swallow a pretty big something-or-other to say that any of them constituted “extreme circumstances.” At least, it would be hard for any of the magnificent fourteen to say that. How about one of the women who got through?
If Yossarian is right, then I’ll paddle my rubber boat to Sweden with Orr.
Richard Posner.
Thanks for obliging me Kaimi. I’m genuinely curious about this topic and thought a T&S thread would provide a jump-start to my thoughts on the subject.
I think I heard in the news that president Bush might seek to replace O’Connor with another woman judge. So far though I don’t think I’ve heard any specific names of women who might fill her shoes … though I’m certainly not doubting they are out there.
I’ve also heard the idea that Bush might seek to bring the first Hispanic judge onto the Supreme Court. I suppose Alberto Gonzales meets that criterion. Here’s a little read-up on him.
Honestly, as a non-legal person … I have no idea what the base requirements are for a submitted name. Does the person have to already be a sitting judge? I suppose the requirements are in the Constitution somewhere.
No, it doesn’t have to be a sitting judge. There have been a number of politicians who’ve been nominated in the past; and some have recently suggested that Bush could name a current Senator or Representative with sufficient legal background. I’ve even heard Orrin Hatch’s name tossed about, though he’s too old to make it likely.
Danithew-
The person does not have to have any legal experience. In fact, in some ways those without judicial experience are preferable because they do not have a paper trail of decisions that can be attacked during the confirmation process. For this reason law professors are frequently listed on the hot list, and that is part of the reason that Michael McConell is a potential darkhorse.
Here is Slate’s list: http://slate.msn.com/id/2121270/?nav=ais
Let me thrown in a (very) dark horse: Second Circuit Judge Richard Wesley. He was put on the NY Court of Appeals by Pataki, and put on Second Circuit by Bush. He’s deeply conservative in some ways, but pragmatic and collegial. Most importantly, I think that his powerful home state senators, Democrats Schumer and Clinton, would be hardpressed to oppose him.
Aargh. Forgot to reset the fields — that was me, not Bill. I guess that cat’s out of the bag.
Me.
After the Kelo vs. New London decision I’m certain that I can read the Constitution better than 5 out of 9 sitting justices.
Even darker horse: Stephen Carter, of Yale Law School. It’ll never happen, but, hey.. And if I can’t have Carter, as a University of Utah alum, I’d be happy – or as happy as I’m going to be – with McConnell.
I keep hearing that O’Connor’s stepping down is a really big deal, but I really don’t think it is, relatively speaking. Indeed, my guess is that the newly confirmed Justice put in her spot does relatively little to change the overall dynamic of the court. Bush has to pick someone he can trust and is conservative, but that can also get past confirmation, which means that the person will probably be a centrist with right leaning tendencies (or, depending on your characterization, a rightist with centrist leaning tendencies)–a lot like what we had with O’Connor. Seems to me a far more important issue will be when one of the three on the right or four on the left (speaking, of course, in very broad generalizations here) step down, because at that point you’re replacing one of the poles with somebody who is likely to be right-centrist.
More germane to the question, however, I would love to see how the economic pragmatism of a Posner would play out on a national level. And while not as original in theory as Posner, I’ve never a case from Easterbrook I didn’t think was exceptional (even if I disagreed). Alas, they’re both white males, which I think hurts them with O’Connor, and not, e.g., Stevens stepping down. Slate also mentioned Clement from the 5th Circuit, which I found interesting. She spoke at my graduation and I don’t think I could have been less impressed with her topic (“most legal writing that comes to my chambers sucks and its because law schools teach wrong things”–as if that could help us at that point) or her delivery. Perhaps her honesty will get her in.
Eugene Volokh would be my favorite, but he’s too young. McConnell would be another good choice. Posner would be fun, but that’s obviously not going to happen. I, personally, am available, and would be a good choice, but I refuse to wear the outfit, and I don’t like the weather in D.C.
Aaron B
I am not sure that O’Connor’s departure will have much of an impact on abortion, seeing as Kennedy was in the majority in Casey.
I would vote for McConnell. The only person on the planet who takes Orin Hatch seriously as a candidate for the Court is Orrin Hatch.
Alito on the Third Circuit and Luttig on the Fourth Circuits are other options.
BTW, the constitution has NO qualifications of any kind for Supreme Court justices. There is no age requirement. There does not even seem to be a citizenship requirement. There is certainly no professional qualification. On my reading of Article III there would be no constitutional impediment to a three year old Tibetian serving on the Court. Nor does there seem to be a textual impediment to the President, a la Caligula, making his horse into a Justice, provided that he can get the votes in the Senate.
how about Miguel Estrada? Let’s put a non-judge on the court. And face it, he deserves it after being denied a seat on the circuit court.
Alternatively, I like the idea of Sen. Crapo. Reid suggested it, so he could hardley fight against it. It would make for a much easier confirmation.
How about Mike Young? I realize the U would be chagrined, but, frankly, who cares about the U?
Better yet, Kim Clark
Nate, thanks for making it clear just how stringent the written lawful requirements are for a Supreme Court judge. It does seem a bit strange that there are specific age and citizenship requirements for elective offices but not for the Supreme Court.
Matt: Stephen Carter the novelist law professor at Yale? That *would* be interesting.
I hope Miguel Estrada has the patience to endure the tribulations that will surely come – again – if he’s nominated. It’s a given that he had to work incredibly hard just to be noticed by the President of the United States. Already he’s an object lesson on what Democrats really think about ethnic minorities who don’t fit the mold.
The analogy I like to use for diversity is the presence of spices and herbs in the kitchen. A good cook learns to make the most of a large array of seasonings, and knows when and how much to use of each. But the bad cook who puts the same spice in different-colored containers is deceiving only himself.
Rosalynde: It would be. Very. I liked the novel for two reasons that elevated it beyond its deceptive appearance as a slightly more complicated John Grisham potboiler. First, it was one of those books in which most of the interesting characters seemed to be slightly disguised real people, making it a fun Tom Wolfe-style look at the upper-crust culture of legal academia. The second reason was the multiple Stephen Carter speeches about civic life, religion, and the law that those characters got to give. One line in this book transformed how I’ve engaged with the Church: “Religion is not supposed to be easy.”
His other books, particularly The Culture of Disbelief, aren’t too shabby either, if a legally ignorant historian-in-training such as myself is at all competent to judge. (I suppose this would be the venue for more informed opinions than mine.)
Anyway, if I could pick one person to solve the problem of church and state in America, in all its various manifestations, Carter would be the one.
I notice that very few people have actually listed a woman candidate as a likely possibility. I saw one on the list from Slate … but her description almost made her inclusion feel like an obligatory gesture. It seems kind of a shame to me that the Supreme Court might become an all-male quorum again.
Danithew:
1. Because O’Connor wasn’t expected, the WH search was based purely on objective grounds.
2. Now that a woman has retired; there is political pressure to appoint a woman to replace her; or at least a minority.
3. The WH had interviewed two female Judges on the 5th Cir.; of which I’d favor Judge Jones, [(the other is Judge Clement?), simply because she takes alot of BYU law clerks] before they knew re: O’Connor. They simply didn’t get as much attention.
Again, be wary of what you read in the media; or at least read several sources to get a better overall feel; i.e. WH sources had already ruled out Wilkinson (sp?) of the 4th Cir. and Ted Olson due to age; but the NYT still published their names as likely nominees.
1. fyi: the NYT is still repeating the list; bad taste on their part. of course, they are repeating the abortion ‘threat’ when it would clearly take 2 justices to change Roe. This is just simply pandering on the part of the NYT (Kaimi’s ETA to try and save the Grey Lady? Um…5 min after he reads this; I’m sure he will have a response).
2. Also, your post seems to indicate that w/o O’Connor, there would be 8 male justices. That is just plain false. Unsurprising that the MSM would give you that impression though. Check out a picture of the current Court; there is another female there.
3. far more importantly than _who_ is appointed is _what_ they do and _how_ they get there. Frankly, Warren et al. politicized the Court in the worst and most dangerous way. Basically, we are now set up for a Court that the American people will reject as illegitimate, taking away yet another part of the Firm foundation that the Framers left us with.
My letter to Sen. Specter can be found at a new group blog I write for:
http://philafedsoc.blogspot.com
Whoever it is, hope they look better naked than the current justices in Jon Stewart’s book.
I’d love to see Thomas Griffith as a canidate. Although he was just appointed to the Court of Appeals so it doesn’t seem likely.
I think its going to be Bo Derek. She has everything the critics are looking for–
a) a female “plus candidate”
b) reliably conservative
c) at age 49, she’s mature enough for the bench, but young enough to last a long time
d) liberals will like that she’s an animal lover who has worked with Democrats.
e) baby boomers like Bush think she’s hot, and could stand to see her in the next edition of Jon Stewart’s America (some have already seen a preview, thanks to Hugh Hefner–see cover shot)
Among the possible candidates for nomination, who would be the most likely to vote with Clarence Thomas and Antonin Scalia on moral issues facing the court? I have been especially dismayed by the recent votes overturning the Texas sodomy law, and allowing local governments to condemn private property for the use of private developers. Both Thomas and Scalia voted the right way on those decisions because they don’t want to misinterpret the US Constitution overturning precedent. Some of the other justices don’t have such scruples. They overturn precedent often.
I don’t know who is going to be appointed, but I’d guess that those being “pushed” by the media aren’t the right ones. The mainstream media hardly ever gets it right because they have an axe to grind. It’ll be interesting to see if the bloggers do any better in their predictions.
What about Judge Judy?
She’s a female candidate to replace O’Connor. She’s tough and popular with the masses. I don’t know about her stance on Roe, but she has a really solid track record on making old boyfriends fork over the rent they agreed to pay before dumping their two-timing girlfriends. And it would be great to see the inspector general getting berated from time to time.
If Bush nominated Dallin Oaks, Harry Reid wouldn’t complain about it…
John Redelfs,
Actually, Kelo (the recent takings clause decision) is consistent with a very long line of precedents — about 100 years of takings clause jurisprudence. It would have been a major overturning of precedents if the court had ruled the other way.
(That was what Justice Thomas’s dissent was all about — basically, he thought that the court should overturn its precedents).
For an explanation of some of the major precedents to Kelo, see http://prawfsblawg.blogs.com/prawfsblawg/2005/06/a_kelo_of_overr.html .
Of course, other arguments can be raised against Kelo. But suggesting that Kelo is inconsistent with the Court’s prior precedents is flat-out wrong as a factual matter.
John: Unless one believes, as Thomas does, that the Court went wrong 100 years ago and the last 100 years of decisions are illegitimate. Perfectly legitimate position to take. And…given the result reached in Kelo, surely anathema to the Founders, yet another reason to restore the real constitution from the taters liberals have made of it.
Lyle,
As I’ve also posted elsewhere, I don’t see how Kelo is “anathema to the Founders.” The Founders didn’t think that the federal takings clause protected against state action at all. (It wasn’t until incorporation, that doctrine which conservatives usually bad-mouth, that the idea of federal takings clause protection against state action emerged — and that was well after 100 years after the founding).
So if you could call up James Madison — author of the takings clause — in the spirit world, and you excitedly said “James, you won’t believe this! That dastardly Supreme Court has said the takings clause won’t prevent the city of New London from taking private land for economic development!” . . . well, he would most likely wonder why you thought that the federal takings clause should be interfering in state actions at all.
(Side note — I’m not sure why Justice Thomas, who has been so eager to criticize the doctrine of incorporation in Newdow and other contexts, is apparently such a believer in incorporation when it comes to the takings clause. Can someone explain this to me? It seems awfully inconsistent, and looks like a position of “incorporation of liberal-ish tools like the first or fourth amendment — bad; incorporation of conservative-ish tools like the takings clause, good.”)
Kaimi,
> I’m not sure why Justice Thomas, who has been so eager to criticize the doctrine of incorporation in Newdow and other
> contexts, is apparently such a believer in incorporation when it comes to the takings clause.
From Thomas’s dissent in Kelo:
As you can see, even in Kelo Thomas makes a minor reference to incorporation as being arguable. But since as far as the rest of the Court is concerned, incorporation is settled, the focus of Thomas’s opinion is on whether the Takings Clause is being interpreted correctly (which means interpreted as it was understood at the time.)
As for Thomas’s views on incorporation as expressed in Newdow (I don’t know about elsewhere), I don’t believe they’re as contradictory to incorporation of the Takings Clause as you seem to think:
Like the Free Exercise clause, the Takings Clause is an individual right, rather than a federalism provision. So it is not contardictory to support incorporation of the Takings Clause but not the Establishment Clause.
Knowing Bush, he’ll probably nominate Donald Rumsfeld.
Is Pat Schroeder a lawyer? Do you have to be a judge first to be on the supreme court. I like her, I’d like to see her on there.
To whom shall we abdicate?
The future of our nation’s fate.
Shall reason rise, from the squalor of debate
To crown judicial heads of state?
Judge not least ye be judged
Nor acquiesce to those not budged
Through what anguish have we trudged
And find alas someone fudged.
Black caped gowns like Vader’s wear
Sitting high on judgements chair
Wielding miter’s everywhere
Shall we lose more freedoms fair?
Shall we take councils of a king?
Who simply knows not everything?
Intrusting freedom to the ring
Of some imposters surly sing?
Well, mortals have their own repose
And the cause of some is through the nose
If we choose wrongly then “there she goes”
And we start over I suppose.
Harold B. Curtis
For O’Connor’s slot, Bush should nominate one of three women: Priscilla Owen, Edith Jones, or Janice Rogers Brown. Brown and Owen have recently been confirmed as part of the deal made by the Gang of 14. Each is solidly “conservative” as that term is used generally in jurisprudential contexts. Jones has a shot because she is form Texas and is the candidate passed over by Papa Bush in favor of David Souter.
For Rehnquist’s slot, Bush can go with Emilio Garza of the Fifth Circuit. This would give him major political points for appointing the first Hispanic to the SC AND he could do it without upsetting his base, which is agitating against Alberto Gonzalez.
Then, when Stevens croaks next year or the year after, Bush can put in someone like Luttig or Roberts, a solid constitutionalist-for-a-liberal trade. If you think the left is going nuts now with the idea of a conservative replacing the so-called moderate O’Connor, just imagine the apoplexy that an appointment to replace Stevens would engender.
Of course, I think Bush ought to nominate one of the following, just for kicks:
1. Robert Bork
2. Alan Keyes
3. Ken Starr
4. Roy Moore
5. Condoleezza Rice
BTW, Kaimi is WRONG about the Kelo case not departing from precedent. But it’s 11:00 on a Sunday night and I’ve been working on a stupid chapter 11 filing since after church and don’t feel like refuting him. But trust me, he’s wrong.
Not sure if this link will work (I seem to have a lot of trouble with this stuff), but here is a quote from Prof. Richard Epstein from the University of Chicago on the significance of the Kelo decision:
http://gregransom.com/prestopundit/?p=122
If the link does not work, just go to http://www.prestopundit.com and scroll down.
Actually, Epstein admits that it does follow precedent (albeit precedent he doesn’t like — he refers to it as an intellectual blunder). Besides, you would have to get a better source to refute Kaimi’s point than a strident neo-Lochnerite.
I think Bush will nominate Bo Derek–she’s female, reliably conservative, liberals will like her animal activism, and W’s generation finds her “foxxy”–thus satisfying Jack Sprat’s request (#25).
RE: Danithew’s #22. I’m not sure Justice Ginsberg would appreciate your remark!?!
Nate W.:
I think yu missed Epstein’s point, which is that although there are SC precedents allowing for the taking of private land for something other than what was historically considered a “public use,” those precedents presented limited exceptions. The SC with Kelo has taken those limited exepctions and completely obliterated them by, in essence, amending the text of the 5th Amendment so that it no longer reads “public use” but instead reads “public benefit.” In this way Kelo is quite different from the precedents that have gone before and is, indeed, a dangerous precedent. That so-called liberals supported what is essentially a sop to Big Business in league with Big Government is an irony, though not a completely baffling one.
BTW, even if I agreed with you that Epstein is a “strident neo-Lochnerite,” which I do not, I fail to see how that is relevant. If the intellectual arguments he makes are reasonable and valid, it seems to me they serve as an effective refutation of Kaimi’s assertion that “Actually, Kelo (the recent takings clause decision) is consistent with a very long line of precedents – about 100 years of takings clause jurisprudence. It would have been a major overturning of precedents if the court had ruled the other way.” Personally, I am not a neo-Lochnerite (and I hope I am not strident, though I fail to see how stridency affects the value of one’s argument one way or the other) and I will incorporate by reference Epstein’s arguments as my own. There, now you have the argument being made by a non-neo-Lochnerite. Is it more persuasive?
Kaimi: Your point is good; but anachronistic (or mine is, and your point is just wrong…take your pick). Madison et al. would never have allowed such to be put into their state constitutions. And if you told Madison about incorporation; its fairly plain that they wouldn’t want the federal government allowing such either.
Yoko Ono would be a good choice. If she can break up the most famous rock band in history, she should be able to break up gridlock in the court.
Imagine that…
MDS,
Your comment only reveals my ignorance of the current Supreme Court — something I need to learn a lot more about. I thought O’Connor was the only sitting female on the court. I’m glad to learn I was wrong.
More on Kelo:
http://www.reason.com/hod/js063005.shtml
Eric S.,
Epstein’s argument is based on reading existing precedent as narrowly as humanly possible. However, the text of the opinions does not bear him out. Midkiff lays out the standard for review on determining whether a use is public or private:
Of course, this Act, like any other, may not be successful in achieving its intended goals. But “whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if . . . the . . . [state] Legislature rationally could have believed that the [Act] would promote its objective.” When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings — no less than debates over the wisdom of other kinds of socioeconomic legislation — are not to be carried out in the federal courts. Redistribution of fees simple to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly is a rational exercise of the eminent domain power. Therefore, the Hawaii statute must pass the scrutiny of the Public Use Clause. [citations omitted]
Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) at 242-43 .
Justice Stevens’ opinion followed this line of reasoning. As long as there is a rational basis for taking their action, New London should have succeeded in their taking. Epstein’s argument is a libertarian fantasy rather than a rational reading of prior precedent. Now you may argue that New London’s action should not have satisfied the rational basis test, but I think you’d be pretty hard-pressed to win that argument, seeing that the bar is set pretty low (See Williamson v. Lee Optical, 348 U.S. 483 (1955) for an example).
That Epstein is a neo-Lochnerite doesn’t invalidate his argument per se, it just cautions that, in a case such as this, he may not be the most unbiased source when it comes to analysis of the law. It’s like citing statistics from PFAW or the Heritage foundation. Their agenda undermines their credibility.
Nate W.:
Fair enough, but it is still a debatable proposition that Kelo is just following established precedents and not expanding upon them, and it is not just the “neo-Lochnerites” who think Kelo went too far in its seemingly infinitely elastic definition of “public use.” After all, O’Connor wrote the dissenting opinion, and last I checked she ain’t no neo-Lochnerite.
This brings up an interesting tangential question: should the Court look to precedents like Midkiff in deciding a case like Kelo? If so, should the Court give deference to such decisions? Or should the Court simply look at the langauge of the 5th amendment and decide what it means in the context of the case before them either without consulting cases like Midkiff? It will be interesting to see what the views of Bush’s nominee are on this subject. Is stare decisis more important in statutory construction cases than in constitutional interpretation? This is an area where even so-called “conservative” justices may differ (Thomas and Rehnquist, for example).
“he may not be the most unbiased source when it comes to analysis of the law”
On this, you are correct. I, of course, am the most unbiased source when it comes to analysis of the law.
Can we get off Kelo now and actually respond to the initial question posed by the post?
Dear Um:
Since constitutional interpretation and property rights are very much an issue; one really can’t ‘get off Kelo’ re: who the new justice could/should be.
Um:
Ironic that your post does not address the initial question…
Returning to the original point of the post, we need a justice who would never agree to anything like Kelo. Kelo has just legalized rape of the poor and under-privileged. Anybody who knows anything about how most local governments works understands that real estate developers are the largest contributors to most campaigns. Why? So, they can get their real estate projects approved. Kelo has just legalized local governments working with developers to use eminent domain against private property that has a private use — for the first time. In the past eminent domain has primarily been aimed at property with a public use (highways, parks, etc). What this means is that anybody with a home or small business that is in the sites of developers can lose their property without legal recourse if developers and the local government prove the property would be more beneficially used for other purposes — like raising the tax base. In reality, it will be the wholesale confiscation of private property for government redevelopment schemes. Sometimes these schemes work out — sometimes they don’t. Anybody who has visited downtown Miami or downtown Pittsburg can see a long list of empty buildings that at one time were part of redevelopment schemes that went bad. Who lived on that property before? Families or single people with children or the elderly. All of them were forced out to create new empty buildings with no soul. Look for a lot more of that in the years ahead because of Kelo.
Kudos for O’Connor (not my favorite justice by a long shot) for her excellent dissent in the Kelo case.
It’s funny how the “court is bad” crowd has such a schizophrenic attitude towards their democratically-elected officials.
Post-Goodridge: “How dare you preempt our beloved elected officials!?! Our democracy wants to prevent gay marriage!! How dare you counter the will of the legislature?!?”
Post-Kelo: “How dare you kowtow to our elected officials!?! We don’t trust them at all!! Why aren’t you stepping in to protect us from our evil legislators!?!?”
Geoff B,
Not exactly for the first time.
For a discussion of 50+ years of prior precedents allowing takings that give property to various private parties, see my Prawfsblawg post linked above. (#30)
Kaimi, you always respond to cartoonish thinking with cartoonish thinking. Old Reliable.
Geoff B., the activity that Kelo sanctions is an outrage and an offense to a free people, but the Kelo opinion isn’t. Reasonable jurists could reach the result it reaches, especially given the precedent Kaimi refers to (which is by no means as clear as Kaimi insists, but is certainly suggestive).
Hey Adam, who you callin’ cartoonish, fool?
http://captain20.com/images/bozo.jpg
I’ll tell you my secret, animated superhero identity if you’ll tell me yours.
> It’s funny how the “court is bad” crowd has such a schizophrenic attitude towards their democratically-elected
> officials.
Kaimi,
Schizophrenia is not the same thing as Multiple Personality Disorder. I believe you are trying to accuse the “court is bad” crowd of suffering from the latter, not the former.
Kaimi, I won’t defend everything said by the “court is bad” crowd, but they aren’t being inconsistent if they base their complaint in the Court’s frequent refusal to honor the Constitution, as it did in Kelo (reading “public use” as “public benefit”) and Lawrence, in order to reach conclusions they personally prefer over the existing Constitution as established by the people. No doubt the allure of being king is a strong one, but that’s no excuse for our tolerating their urge to power.
Adam,
You’re right that I shouldn’t react with hyperbole. It’s just that I get frustrated after the 37th time that I try to discuss Kelo with someone and they all have the same misconceptions. It seems that there are a lot of pundits who are feeding people a lot of bad information about Kelo. And there are a lot of misinformed people who haven’t spent much time reading either the Kelo opinion or its antecedents, who suddenly seem to think that they’re experts in this area.
I’m particularly frustrated because this is an area of law that I actually care about. I’ve written one article on the takings clause so far, and another is in progress. I’ve presented both articles at law school workshops. In one published piece, I discuss the public use clause briefly. In other words, I read Midkiff and Berman before any of the Johnny-come-latelies were paying any attention to them, and I think that I know the area of law pretty well. So it frustrates me to see the widespread misinformation.
I wrote in 2003:
Kaimipono David Wenger, Slavery as a Takings Clause Violation, 53 Am. U. L. Rev. 191, 238-39 (2003).
I wrote that about the public use clause in 2003, two years before Kelo. Kelo doesn’t change that analysis at all.
Eric:
Shame on you. Multiple Personality Disorder is passe. The new term for it is “Disassociative Identity Disorder.”
But in either case, it’s clearly NOT schizophrenia.
And you’re all just jealous cause the voices talk to me, not you. ;-)
And my superhero identity is that of Captain Carrot.
http://www.rickhoberg.com/morecomics/CAPTAIN-CARROT-17.jpg
I should add that I don’t agree with everything that the Kelo majority says, and that I think that it’s quite likely that the jurisprudence here will evolve to some sort of coalition around Justice Kennedy’s concurrence, which is quite a bit more limited than the majority opinion. It seems quite likely that, following Kennedy’s concurrece, some sort of balancing test for public use questions (like the “Lemon test” in first amendment jurisprudence) will end up being the result — and that’s probably a better result than the Kelo majority, and certainly a better result than the Kelo dissent, in my opinion.
Kaimi, you would find yourself a lot less frustrated if you would make a comment like #65 first before you light into those of us who aren’t lawyers by trade. If you had made that comment first, and then followed it up by something like #62, I would have ignored this thread completely and deferred to your superior knowledge. But your first instinct was to attack poor ol’ John Redelfs and you certainly seemed to imply that it was OK for government to swoop in and take property from the poor and hand it to developers. I couldn’t let that stand. I would respectfully suggest you may want to realize that not everybody on this board or other boards is a lawyer with your level of knowledge and experience. If somebody came on and started talking about telecommunications, an area where I am expert, I can’t see myself being as dismissive as you seem to be on these issues. But maybe if it was the 50th time somebody said the same dumb thing about telecommunications, I would lose my patience. I’m not sure.
I am coming around to Kaimi’s view that Kelo is not as bad as it was first reported to be. However, I still think that the degree to which Kelo is just followiong precedent is debatable and reasonable minds can differ on (a) how far Kelo might depart from precedent and (b) the impact Kelo may have on the future of eminent domain jurisprudence.
That said, other conservtatives are rethinking their initial apoplexy over Kelo, to wit:
http://www.weeklystandard.com/Content/Public/Articles/000/000/005/779fkbar.asp
Oh, and to keep it on topic, rumors are swirling about a potential retirement this year from Stevens (Senator Schumer’s office started this rumor) and Ginsberg (former clerks say she is as sick or sicker than Rehnquist). Now, wouldn’t it be something to get 4, count ’em, 4 picks from W?
Eric: If push could appoint 3 justices of his choice; i wouldn’t complain if he let the liberals choose 1. :)
re: Kelo. The group that is seeking to condemn souter’s house to build the “lost liberty hotel,” is starting to move forward with the condemnation effort; i.e. it wasn’t just a publicity stunt. if interested in being involved, let me know.
Ivan, I’m a conservative, so I’ll stick with the International Statistical Classification of Diseases and Related Health Problems usage of Multiple Personality Disorder, rather than the new-fangled name imposed by the radical Diagnostic and Statistical Manual of Mental Disorders faction.
Eric –
I didn’t realize there was such a stringent debate about this. Perhaps we should attempt a threadjack>
Nah. ;-)
Tuesday morning two co-workers were standing in front of my office having a conversation. One said to the other, “Did you hear that Doris Day resigned?” The other replied, “Huh, I thought she was dead.” Renee Zellweger seems like a modern day Doris Day… maybe she could be the next Supreme Court Justice.
Some people previously alluded to the fact that Posner seems to be a front runner as well as Garcia, but with the partisanship being what it is today, there are quite a few groups that must be considered. The first being women, who just lost someone, the second being Latino’s who Bush wants involved (which I think would be a strong move towards the GOP capturing the Latino vote, which is yet to be cemented by the Dems), and finally the hard conservatives.
With all of the new talk about Rehnquist, I think he will go ahead with Gonzales, and appoint a woman when Rehnquist steps down, or vice versa, with the latter allowing Gonzales to be appointed Chief.
Now with respect to solid conservatives, I think Senator John Cornyn would be a good pick. This is due to the fact that he is a Senator, so he obviously has friends to uphold him, and he does have extensive experience as a lawyer and judge. His biggest problem is probably the fact that he doesn’t have the educational pedigree that justices seem to have, but he is a Texan, and we know how Bush feels about them.