Court decision: bad news / good issue for Bush?

By Wes Vernon

Supreme Court Justice Sandra Day O'Connor chose to announce her forthcoming retirement just days after she had written a brilliant dissent to an outrageous court decision. The majority of the justices ruled in the case that local authorities can boot you out of your house if a private developer has other plans for your property.

In triggering the beginning of the expected bitter battle to replace her just when the shock of the ruling, Kelo vs. the City of New London, is fresh in the minds of Americans, Justice O'Connor — apparently by pure happenstance — has handed President Bush a golden opportunity: a "wedge issue" in his arsenal of "talking points" to get a truly conservative replacement on the bench. The court decision goes straight to the heart of something every American understands — the sanctity of one's home.

If White House advisor Karl Rove himself, with his innate sense of good political timing, had somehow been able to maneuver the schedule for O'Connor's announcement, he could not have done better. The timing is fortuitous for the president if he chooses to use it, and if he doesn't, some of his organizers surely will. It's reasonable to speculate that even now, TV and radio commercials are being written citing Kelo as the kind of judicial activism that will likely ensue if the left succeeds in denying the confirmation of a conservative court nominee.

You can say that much of what the Supreme Court decides is ignored by Americans too busy playing by the rules of managing their lives, paying their taxes, getting the kids to soccer games, socializing around the water cooler, or punching a time clock.

But there are very few court decisions more personal or more outrageous than this one. What American doesn't understand a direct threat to his/her own home? Here is a court decree that says, as Justice O'Connor wrote, "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 given to an owner who will use it in a way that the legislature deems more beneficial to the public."

What normal average American can't identify with a bald-faced threat to the sanctity of his own home by a tax-grabbing government that had decided that though Harry Homeowner may have been paying taxes through the nose, it isn't enough? So therefore, he will be complacent if almighty City Hall kicks him out of his house to make way for some strip mall or a hotel? I don't think so.

Granted there are still a very few whose couch potato existence leaves them indifferent because they "don't worry about politics." They will be saying that when they're hauled off to the gulag. They're hopeless. But most Americans can understand something that smacks of the dreaded midnight knock on the door.

As we contemplate the bruising battle ahead that could make the intellectual and political bloodbath over the Clarence Thomas nomination in 1991 look like a polite tea party, those who craft the campaign for a good court nominee are sure to strike pay dirt with the public by connecting the following dots: A-The implications of the Kelo decision, B-The fact that all justices who joined in the majority in that decision were either reliably liberal (John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and David Souter) or "moderate, (Anthony Kennedy)" and C-The fact that these are precisely the kinds of judges that the Joe Bidens, the Ted Kennedys, the Chuck Schumers, the Pat Leahys, and the Dick Durbins insist are "mainstream."

As House Judiciary Committee Chairman James Sensenbrenner declared, Kelo "has the potential of becoming the Dred Scott decision of the 21st Century." For those who were "educated" in U.S. public schools in recent years, that ruling affirmed the stamp of constitutionality on the practice of slavery. The ensuing outrage was one factor leading to the Civil War. Kelo has the potential to ignite a political firestorm, with consequences for years to come beginning with a popular backlash against those on the left demanding "activist" judges who in effect write their own laws and their own constitution rather than interpret them.

Many high profile liberals have been uncharacteristically silent on this decision. But others on the left joined in an outrage that has crossed partisan and ideological lines. We now find that socialist Congressman Bernie Sanders, ultra-liberal Congresswoman Maxine Waters, House Judiciary Ranking Democrat John Conyers, and liberal Fox News commentator Juan Williams are in the same chorus of denunciation as conservative voices such as Sensenbrenner, House Majority Leader Tom DeLay, House Majority Whip Roy Blunt, and the editorial page of the Washington Times.

A few liberals have actually supported the court ruling — swallowing hard to balance their natural affinity for statism against popular common sense.

The establishment's Washington Post, for example, said that though the result of the justices' action was "quite unjust [i.e. ousting Connecticut homeowners from their long-held property]," nonetheless "the court's decision was correct."

Rep. Harold Ford, Jr., a Tennessee Democrat who is running for the Senate seat now held by Senate Republican Majority Leader Bill Frist (who retires next year) supported the decision shortly after it was handed down — much to the delight of Tennessee Republicans

Commenting on legislation that would withhold federal funding from communities that actually take advantage of this new authority the court handed them, House Minority Leader Nancy Pelosi said that short of a Constitutional amendment, Congress has no business taking action, and added, "And I'm not saying that I'm opposed to the decision."

But here is the part of Pelosi's comment that pinpoints the iron fist clothed in the velvet glove of "The Coercive Utopians" [to recall the title a book of two decades ago]:"

"This [the decision] is almost as if God has spoken," the San Francisco Democrat intoned.

The idea that the Founding Fathers intended the Supreme Court to be the ultimate last word on every controversy that makes its way into the legal system has been called into question most recently by the New York Times bestseller, "Men in Black" by Mark Levin of the Landmark Legal Foundation. But for the here and now, that is a discussion for another day.

The Kelo decision, or course, is only one issue in the upcoming battle. But in the handling of that particular uproar, here is a strategy that will likely be employed:

1-Cite Kelo as one prime example of where the court is going, and how a conservative nominee is the kind of "balance" we need. 2 — Make the elected opposition senators take a stand on Kelo. Smoke them out. 3-In addition to the paid ads, use the alternative media (talk radio, Fox News, letters to the editor, whatever) to hammer home this connection. 4 — If anyone says that three of the five justices in the Kelo majority were appointed by Republican presidents, remind them that two (Souter and Stevens) were "stealth" or "consensus" nominees presumed to be relatively conservative and turned out liberal, and that the third ("moderate" Anthony Kennedy), was President Reagan's third choice after the failed Bork nomination of 1987. 5-Above all, do not let up on the theme that, as the Washington Post Real Estate section headlined it, "Court Ruling Leaves Poor at Greatest Risk," a point ignored by that paper's own editorial writers. The average Joe or Jane is to be squeezed by developers lining the campaign pockets of city councilmen. Hello? Aren't liberals supposed to be for "the little guy?"

This is not to be just another Washington fight mainly of interest to policy wonks or the chatterers at Washington cocktail parties. This one goes straight to Main Street and the kitchen tables all over America. The issue here hits home — in the very literal sense. As Tom DeLay put it, "The only silver lining to the cloud of this decision is the possibility that this time the court has gone too far."

Senators will be hearing plenty about this as the nomination battle goes forward. That assumes the president will in fact nominate a true conservative, as promised in his campaigns of 200 and 2004

© Wes Vernon