July 6, 2005

Kelo is the key to a new Supreme Court

By Steve Feinstein

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.