It is an interesting coincidence that two of the judges mentioned as likely successors to Justice Sandra Day O'Connor are women named Edith who currently serve on the Fifth Circuit Court. They are Judge Edith Hollan Jones and Judge Edith Brown Clement. Professor Hadley Arkes comments on the merits of these two fine candidates.

Edith Jones has the sharper definition as a conservative, tagged as pro-life in her perspective, and she is bound to draw the heaviest fire. Joy Clement, in contrast, would be a harder target: Her own specialty was in maritime law; she has not dealt, in her opinions, with the hot-button issues of abortion and gay rights; and she has stirred no controversies in her writings or in her speeches off the bench. She would be the most disarming nominee, and it would be a challenge even for Ralph Neas or Moveon.org to paint her as an ogre who could scare the populace. The main unease would come in the family of conservatives: If people donÂ’t know her personally, they will suspect another Souter or Kennedy. For they have seen the hazard in relying on the assurances given even by the most reliable conservatives, who claim they can vouch for the nominee.

I would vouch for Joy Clement myself, and I would vouch for Edith Jones. But as I commend Joy Clement, I open myself to these searching questions from friends who have suffered the lessons of experience: If we know little, really, about her philosophy or jural principles, how do know that she will not alter when she is suddenly showered with acclaim from the law schools at Harvard and Columbia? Will she not be lured as she is praised in measures ever grander, as a jurist of high rank, as she “grows” with each step ever more “moderate” and liberal? Those who commend her face the risk of joining the ranks of those who offered assurance on Kennedy and Souter, and lost forevermore their credibility.

But even more unsettling than that, the willingness to go with the candidate without a crisp, philosophic definition may mark the willingness to act, once again, within the framework defined by the other side: It begins with the reluctance to admit that we have ever discussed the matter of abortion with this candidate, or that she has any settled views on the subject. In other words, it begins with the premise that the right to abortion is firmly anchored as an orthodoxy; that those who would question it are unwilling to admit in public that they bear any such threatening doubts. The willingness to accept premises of that kind, as the framework for confirmation, may account for a Republican party that has brought forth as jurists the team of Stevens, OÂ’Connor, Kennedy, and Souter.

If the administration finally comes forth with the name of Edith Jones, that will be taken as the clear sign of a willingness to break from those debilitating premises that signal, in advance, the eagerness to back away from an argument. But on the other hand, Edith Clement may be the stealth candidate who, for once, delivers to the other side the jolt of an unwelcome surprise. She may be the disarming candidate who truly disarms before she goes on to do the most important work that a conservative jurist at this moment can do

In other words, Judge Jones would be a candidate with a clearly defined philosophy who would be a direct challenge to those on the lLeft who do not want a "conservative extremist" (as defined by the Left, meaning not a supporter of Roe), while Judge Clement would be an easier candidate to get by the Left but might be a more difficult candidate to sell to the Right because of her lack of a clear public position on the issue of abortion.

Professor Arkes also points out that there is an additional, symbolic reason for replacing O'Connor with a conservative woman.

When the Court begins to explain again the grounds for protecting children in the womb, that account may produce a more lasting resonance if the explanation comes from a woman. At the same time, we could only run the risk of feeding the worst clichés in our politics if the only woman on the Court was Ruth Ginsberg, and if the Voice of the Woman on the Court spoke only in the accents of the Left. The commentators who have been clamoring these days for “balance” on the Court have not exactly been clamoring for a balance between women. And yet it would be no descent into a low politics to show that a woman’s perspective may express itself in an attachment to the moral tradition and to a conservative jurisprudence.

I agree. To let an ultra-liberal former ACLU attorney be perceived as the "voice of women" on the court is a political mistake. Worry about making that precedent setting appointment of a Hispanic later -- select a good conservative woman now. And I'll be happy to take either Edith.

Posted by: Greg at 06:18 AM | Comments (23) | Add Comment
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This story is absolutely mind-blowing. The meeting that took place today in Houston absolutely shocks the conscience. At the risk of giving offense, the only parallel I can think of would be a meeting of local and federal law enforcement to make sure that the Klan and other racists were kept safe from the Freedom Riders during freedom summer. After all, those involved in this meeting clearly view those who would see our nation's border secured, sovereignty respected, and laws enforced as being (to borrow a phrase from the racists of the Civil Rights era) "outside agitators" seeking to stir up trouble.

The Minutemen, a group of American citizens opposed to immigration crime, are planning on monitoring the activities of immigration criminals and those who hire them this October here in Houston because local law enforcemnt have been ordered to do nothing that might frighten the border jumpers. There have already been the expected whining and threats against the Minutemen emanating from the supporters of border jumping. Naturally, the local law enforcement establishment is gearing up -- to harrass the patriotic Americans and aid and abet the immigration criminals and their employers and supporters co-conspirators.

Law enforcement officials in Houston began meeting today to discuss strategies for keeping the peace when the Minutemen Civil Defense Corps sends observers to the city in October to patrol for illegal immigrants.

"The city of Houston is a very diverse city," said Houston Police Chief Harold Hurtt. "There is a great deal of harmony here, and we are not going to stand by and let some outside agency or organization come in and disrupt that harmony. We will do whatever is necessary to keep the peace in the city of Houston."

The Minutemen, a civilian organization initially set up to patrol the Mexican border, has announced plans to send observers to watch day laborers and videotape them.

At the same time, immigration rights organizations have announced that they will form an organization to counteract them.

Excuseme, Chief Hurtt -- these are going to be men and women with cameras, notebooks, and radios. What trouble are you expecting of them, given their history of non-violence? Are you planning on allowing the immigration criminals and their co-conspirators to walk away scot-free from violent actions against American citizens engaged in legal activity, while arresting and harrassing the non-violent citizens? What exactly is your problem with American citizens coming to Houston and protesting violations of American laws and sovereignty?

Of course, a certain politician with a small brain, big mouth, and bigger ego was instrumental in calling this meeting and establishing its direction.

U.S. Rep. Sheila Jackson Lee, who organized today's meeting of law enforcement officials, said she is concerned that the Minutemen's plans to expand their activities to a diverse city like Houston could become confrontational.

"I will say, as a member of Congress, I do not claim the Minutemen are criminals," said Jackson Lee, D-Houston. "I do claim they are acting in an unauthorized way and may be characterized even as militia. When that occurs in a population, what you have is a mixture of confrontation that makes the jobs of these law enforcement indivudals more difficult."

After all, Queen Sheila has previously demanded that the Minutemen be told they are not welcome in the state of Texas.

Unfortuantely, this conspiracy to violate the rights of American citizens is not limited to local law enforcement. Representatives of the federal government were also present to help plan for the suppression of the rights of those opposed to immigration crime. Note, please, that the local head of Immigration and Customs Enforcement attended this meeting, which is designed to ensure that immigration criminals are permitted to continue breaking immigration laws in the face of opposition by American citizens.

Other law enforcement officials meeting today included Harris County constables, Russell Robinson, assistant special agent in charge for the FBI in Houston, and Scot Hatfield, assistant special agent in charge for the Bureau of Immigration of Customs Enforcement in Houston.

"I think collectively we can come up with a solution to this problem as it becomes a problem," said Robinson.

Of course, there was the routine assurance that the law enforcement agencies will make sure that everyone's rights are respected.

Harris County Precinct 6 constable Victor Trevino said law enforcement will be on hand to protect everyone's rights.

"I think what is important for us is to keep the peace," he said. "And we have to ensure our community that we will be there to respond for them."

In context, though, this was nothing short of a pungent load of steaming crap. The entire purpose of the meeting was to deal with the "problem" of American citizens opposing crime, not the actual criminal activity of the border jumpers and their employers and supporters co-conspirators. Rather than devote their manpower to cleaning up even a fraction of the estimated 400,000 immigration criminals in the Houston area, they are instead seeking to hinder those who call attention to the problem. No wonder 10% of the local population is composed of immigration criminals, and more stream across the border every day. Those who should be acting to uphold the law would prefer to hinder those who call attention to the problem and the willful negligence of those who are charged with protecting the border and enforcing the law.

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Law-abiding American citizens have been threatened by groups supporting illegal immigrants, who are seeking city and state action to prevent these citizens from exercising their constitutional rights. On the other hand, these groups, along with Archbishop Joseph Fiorenza, have conspired to provide suport to the immigration criminals.

The local Catholic archbishop and immigrant rights activists want to roll up the welcome mat before the Minutemen arrive to patrol for illegal immigrants in Houston.
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The Minuteman Civil Defense Corps, an organization working to stop the flow of illegal immigrants, announced this week that it would send observers to watch day laborers in Houston beginning in October. Previous plans called for placing patrols only along the Mexican border.

But Archbishop Joseph A. Fiorenza said the Minutemen would not be welcome in Houston.

"We stand against any attempts of outsiders to come into Houston to abuse and intimidate our immigrant communities," Fiorenza said in a statement issued Friday.

Separately, immigrant rights organizations announced that they would fight fire with fire by forming an organization to counteract the Minutemen.

"For every Minuteman patrolling, we will have at least 10 people patrolling them," said Maria Jimenez, a longtime local activist now associated with the Central American Resource Center, or CRECEN.

Of course, it is the right of every American to travel anywhere they want in this country. On the other hand, these border-jumping immigration criminals have no right to be in Houston or anywhere else in the United States. For these groups and individuals to support the criminals and seek to exclude the citizens is obscene and sinful. And speaking as a Houstonian, I would like to tell Archbishop Fiorenza that the border jumpers are the outsiders who are unwelcome in our community.

What is more, the anti-American snakes are peddling the same old "vigilante" lies that we heard before the peaceful Minuteman activity in Arizona.

Some of the immigrants say they worry about the potential for violence. At the CRECEN news conference, representatives noted that many Latin Americans have had bad experiences with vigilantes back home, and they drew direct parallels with the Minutemen.

"In the countries we come from, these groups outside the law are known as death squads" or paramilitaries, Aguiluz said.

As is well-documented, not a single arrest or act of violence was committed by those involved in the Arizona border monitoring activity. The Minutemen were, in fact, responsible for getting medical aid for a number of distressed border jumpers, in addition to helping to raise the number of apprehensions by the Border Patrol in the region. The group functioned in the same manner as a neighborhood watch. To compare them to "death squads" is obscene.

Speaking as a Houstonian, I support the planned Minuteman action in Houston. Furhtermore, I condemn Archbishop Fiorenza and the cretins from CRECEN for their defamation of the Minutemen. It is you who are unwelcome in Houston.

Posted by: Greg at 01:37 PM | Comments (4) | Add Comment
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I nearly had a stroke when I came across the opening paragraph of E.J. Dionne's column today.

Should a temporary majority of 50.7 percent have control over the entire United States government? Should 49.3 percent of Americans have no influence over the nation's trajectory for the next generation?

Translation: "Should the mere fact that the people of the United States have elected a Republican President, a Republican majority to the Senate and a Republican majority to the House of Representatives give the Republicans the right to govern? Does the fact that in 2006, 2008, and every other even-numbered year brings the American people the opportunity to set a new course and vote differently than they have in the last several elections mean that the winners of those past elections should not be permitted to govern? Does the hope that the American people might eventually come to their senses and start voting for liberals again be sufficient reason to deny the President and the Senate majority their Constitutional perogatives today?"

Now for those of you who think may be spinning the words of Mr. Dionne in an unfair and unreasonable light, let me offer this additional excerpt to you.

Consider that since 1992 the Republican presidential vote has averaged only 44 percent and the vote for Republican House candidates has averaged roughly 48 percent. In 2004, with large margins in some of the largest states, Democratic candidates for the U.S. Senate received nearly 5 million more votes than their Republican opponents.

Bu, of course, such cummulative results are not how the system works, and that they are therefore irrelevant? One could, of course point out that only two Democratpresidential candidates since the death of Franklin Roosevelt have received a majority of the presidential votes cast -- Lyndon Johnson and Jimmy Carter -- and the Democrat candidate has averaged only 46.14% of the vote during that period. In the last 10 presidential elections, the Democrat candidate has averaged 44.56% with only one achieving a majority (Carter, with a mere 50.1 wedged between a pair of GOP landslides). The last five presidential races have seen not a single Democrat win a majority of the vote, and they have averaged only 46.89% of the total vote. As for the Senate, since the 1980 election the American people have given the Democrats a Senate majority only four times -- and not at all since the 1994 election. It would appear to me that the current configuration of government is more than a mere temporary phenomenon. Rather, it seems to be part of a broader realignment of American politics. One might wonder, however, why it is that Dionne had no problem with the ideologically left-wng appointments of Breyer and Ginsburg by Clinton -- but I suspect we all know the answer.

Now do I believe that principled opponents of an eventual Bush Supreme Court nominee ought to be ignored? No, I do not. However, it is clear that most of the left-wing groups already girding for battle are not doing so based upon principle. They are proclaiming their opposition to the eventual nominee before he or she is even named by the President. In light of the obstructionist tactics of the Democrats over the last four years, it is clear that the issue is raw politics, not principle.

And given that George W. Bush was elected after campaigning on a clear platform of nominating a certain type of judge, it strikes me as a betrayal of the will of the American electorate for there to be any sort of nominee put forth other than one with a judicial philosophy that tends towards strict constructionism in the originalist or textualist mode.

Update -- Further interesting commentary from Right Wing Nut House, Mandelinople, Discriminations, The Shape of Days,.

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Remember how the Houston Police Department ordered officers not to engage in any activities that might frighten or disturb the immigration criminals who have jumped the border illegally? Well, it looks like the Minutemen are going to do the cops' job for them.

The Minutemen are coming to Houston.

Leaders of the controversial group dedicated to stopping the flow of illegal immigration said they will patrol the streets of the Bayou City beginning in October, as part of a campaign that will extend north from the Mexican border. Houston volunteers will gather near day labor centers and corners where immigrant workers solicit work, in an effort to draw critical attention to the city's hands-off policy toward illegal immigrants.

"We will be videotaping the (day laborers) and we will be videotaping the contractors who pick them up," said Bill Parmley, a Goliad County landowner who heads the Texas chapter of the Minuteman Civil Defense Corps. The Minutemen will only observe to draw attention to the problem and will not attempt to make arrests, he said.

The city and the Chronicle, of course, don't like the fact that American citizens want American law enforced.

It was not immediately clear what reaction the Minuteman effort would have in greater Houston, which is home to an estimated 350,000 to 400,000 illegal immigrants, according to demographers. Polling finds Houstonians generally support immigration.

Nearly 60 percent of Houstonians do not think illegal immigrants are a major cause of unemployment in the area, and 67 percent think the diversity brought by immigration is a good thing, according to recent data from the Houston Area Survey, annual studies conducted by Rice University sociologist Stephen Klineberg.

I'll say it right now -- this Hustonian welcomes the Minutemen, and wants to see them successfully identify the immigration criminals and the businesses that illegally employ them. I want to see the border-jumpers deported, and the employers prosecuted. And if I can help in any way, I am interested in being a part of the program.

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Debra Saunders documents the ethical lapses of House Minority Leader Nancy Pelosi in her column today.

* As the Washington Post reported, last week Pelosi filed delinquent reports for three trips she herself accepted from outside sponsors. The biggie was a week-long 1999 trip to Taiwan, paid for by the Chinese National Association of Industry and Commerce. The tab for Pelosi and her husband: about $8,000.

* A senior aide to Pelosi, Eddie Charmaine Manansala, went on a $9,887 trip in 2004 sponsored by the same Korea-U.S. Exchange Council as sponsored DeLay's excursion -- then failed to file the mandated paperwork until a reporter asked about the trip.

* [The] Federal Election Commission fined her after Team Pelosi created a second political action committee to skirt a $5,000 gift limit. "The main reason for the creation of the second PAC, frankly, was to give twice as much dollars," her treasurer, Leo McCarthy, told Roll Call.

Add to that the fact that in the last five years Democrats took 3, 458 privately funded trips while GOP representatives took only 2,666 and you see that if such trips pose the ethical problem that Pelosi and the Democrats claim they do, then it is the minority Democrat party with an ethics problem.

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A woman was murdered because of her race. The perp admits that his actions were based upon the victim's race -- and even claims she was not an innocent victim because of her race. Sounds like it meets all the criteria to me. Or does it, because the perp is black and the victim is white?

A homeless black man told police on videotape that he was fighting a race war and killed a 56-year-old woman at a Westchester County mall last week because she was white.

The man, Phillip Grant, 43, appeared in shackles and a bulletproof vest in a White Plains courtroom for a felony hearing Tuesday. In the 45-minute videotape played during the hearing, Grant told police "all I knew was she had blond hair and blue eyes and she had to die."

He claimed Connie Russo Carriero "was not an innocent victim because she was white."

Carriero, a legal secretary and mother of two grown children, was stabbed to death while walking to her car at the Galleria Mall parking garage. She was buried Tuesday.

Grant, a convicted rapist, was charged with second-degree murder and weapon possession in the knife attack. If convicted, he could be sentenced to up to 25 years to life in prison.

Now down in New York City, a couple of white guys are facing hate crime charges for beating a couple of black guys who came into their neighborhood in search of a car to steal. But up in Westchester County, enhanced charges won't be filed against a black man who admits a clear racial motivation. What happened to equal protection of the law? Do hate crime laws apply only to crimes committed by whites against minorities, but not the other way around?

Posted by: Greg at 03:59 AM | Comments (1) | Add Comment
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UPDATE: I seem to have used a certain term in this post, a term that I have always understood as referring to immigration status, but which i am now informed is racially/ethnically insensitive. I apologize. I won't change the word on my site, though, because I do not go back and hide my mistakes or bury evidence of my own errors.

"Do not bother the wetbacks"

Those are the orders given to the police here in Houston after a meeting between police officials and pro-border-jumper groups here in Houston. It seems that a couple of police officers responding to a trespassing call had photographed a group of day laborers in order to document their presence in the event they again trespassed on the property. This upset the men, who are in the country illegally, and let to complaints by community groups.

The Houston Police Department has instructed officers not to photograph illegal immigrants seeking day jobs, after an incident last month prompted an outcry from an immigrant rights group.
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Houston police Capt. Juan Trevino made the pledge to 400 people who attended a meeting Tuesday night organized by The Metropolitan Organization, an interfaith grass-roots political action group.

Trevino said that "an isolated handful of officers" took immigrants' photographs after a business owner on North Shepherd recently complained that they "were walking on private property."

Addressing the TMO gathering in Spanish and English, Trevino said that the Houston police department will work with the organization to encourage immigrant workers to seek work at the east side day labor center.

"We have initiated a policy where, at this time, we are instructing all officers that they cannot photograph any of the day laborers that are currently out in the field," Trevino said.

So let's get this straight. City policy already states that police cannot inquire about immigration status, and cannot report border-jumpers to the INS. Now they cannot even engage in reasonable steps to document their property crimes, and must direct them to a day labor center where they can illegally obtain work.

Am I the only one who sees the absurdity in this? I thought the police were supposed to support and uphold the law, not facilitate breaking it.

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Houston Chronicle financial columnist Shannon Buggs adds her voice to those calling for eminent domain reform in light of the Kelo decision. She uses her own home as an example of the type of situation in which a city might override the hopes and dreams of homeowners for the benefit of a private developer.

My Inner Loop home is a block away from urban blight.

To the west are duplexes and fourplexes in various states of disrepair, home to renters with little means to improve their housing situation.

My home also is a block away from urban renewal.

To the east are well-maintained, owner-occupied single-family homes, a renovated two-story that sold for more than $250,000 and a new house built on a long-vacant lot.

My husband and I decided to invest our money, time and energy in our neighborhood, with an optimistic attitude.

The blight to the west was a growth opportunity, not a sign of encroaching decay.

The stability to the east was proof that the neighborhood could and would grow in value.

All we would have to do was update and maintain our home, pay our mortgage and taxes and keep the property as long as we wanted it.

That's the wealth-building strategy known as the American Dream. But now I'm not so sure if my neighbors and I — or any other American not living in a high-priced enclave or an upscale suburb — will be able to fulfill our dream.

Yeah, that's right -- the American dream is dead. Or at least on life support until some developer decides to play Michael Schiavo with your plans for the future.

But Buggs notes that here in Texas there is a likely solution, in the form of a proposed state Constitutional amendment under consideration during the special session of the state legislature. Assuming it is adopted, the measure will be put before the people of Texas in November. Buggs offers some specifics for improving what is already a good idea.

By not setting standards for how municipalities determine what is blight and economic development, the Supreme Court is telling us to trust our elected officials.

That's a nice idea in concept, but a bad one in practice.

We, the people, need to make sure our voices drown out those of developers in the discussions about this ruling.

Bills in the Texas Legislature calling for a constitutional amendment prohibiting eminent domain from being used for the primary purpose of economic development are scheduled for hearings Tuesday and Wednesday.

If a bill passes in the special session, voters will then get their say in the Nov. 8 election.

Giving us a chance to voice our opinion on this issue through a vote is a good start.

The Legislature could also make sure that when economic development is cited as a secondary reason for taking land, governments:

•Only use it to reverse and retard blight.

•Define blight using statistically sound measurements.

•Submit economic development plans to citizens for comments before making commitments to developers.

•Include in economic development plans an analysis of how the people whose land is being taken will or will not benefit from the changes.

A majority of the Supreme Court may not have wanted to tell elected local officials what to do when they exercise their right to use eminent domain, but it is each citizen's duty to do just that.

Well done, Shannon. Here's hoping the folks up in Austin take these suggestions and incorporate them into legislation. And those of you in other states, push for them to be passed into law there, too. After all, any taking for economic development should have to meet an objective standard before it can be approved. And the people must be given a voice in determining that the change is one that we find acceptable.

After all, it will be our homes taken, our money used to do it, and it will be all done in our names. It is only right that such actions have our approval.

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I've written about the flawed Kelo decision several times recently, but have been particularly concerned about the threat to property rights when I have done so. But I have also had another concern, one related to economics and the nature of the real estate market. Unfortunately, I feel I lack the expertise in the latter to do a good job discussing the former, and so I have held off doing so pending some research time. And then I woke up this morning and saw my very concern addressed in the Houston Chronicle by a local developer, Mark A. Anawaty. As he notes correctly, the Kelo decision effectively does away with the notion of "market value". Heck, it even raises the question of whether or not "just compensation" survives Kelo.

Maybe because I live in this world daily in my business of trying to acquire property for private development, I think the decision has a soft underbelly in another area that hasn't been much discussed. The decision may likely erode the distinction between two core concepts in real estate development — just compensation and true market value.

Eminent domain robs property owners of the premium we optimistic developers are often willing to pay in true arm's length negotiations. It exchanges this market test for the notion of just compensation which, if it were just, theoretically wouldn't be so regularly fought over in the courts. Why pay the market price when a politically connected developer can rely on eminent domain?

After all, if governemnt can step into the picture and end the notion that real estate is worth "market value" (what a willing buyer and willing seller agree to by mutual consent for their mutual benefit), instead substituting some nebulous concept of "just compensation", then real estate no longer has a real market value in the development market. And I will be very clear on this -- I'm willing to take significantly less for my house if it will become the home of a family with a couple of kids than I would ever consider taking from a developer who wants to tear down my home and build a grocery store, bank, or gas station -- or even one wanting to put up million-dollar McMansions. After all, the relative values to the buyer differ in each of those scenarios, and it is my right to take full advantage of such differences. That is, after all, the very essence of the market. But instead we now have a willing buyer and an unwilling seller who is forced to accept a price he does not want for property he does not wish to sell.

That leads us back to the question of "just compensation", which I've dealt with in elsewhere. Who decides what constitutes just compensation? Why, the government, which acts as the buyer in this transaction. Imagine the fun I could have had four years ago if I, as the willing buyer, had been able to select my house and set a more-or-less non-negotiable price for it, whether or not the owner had any interest at selling, regardless of price! I can think of a number of places in the area that I would have been glad to purchase instead of my current house (which suits my needs very well) -- an extra 1000 square feet, with a larger yard on the lake or the bay might have been a bit more desirable for my wife and I had we simply been able to walk in and giver the owner notice to vacate the property in return for the price we felt was just. While eminent domain actions do offer the option of challenging the level of comensation, the goal is often to get a low-ball figure accepted. After all, how many of us have the ability to pursue the matter in court against the relatively unlimited funds available to governmement can then add value to it by changing the zoning and re-selling it to the developer at a higher price -- therefore taking for itself profit that morally belongs to the owner to whom was paid "just compensation"!

And then there is the question of competition. When government subsidizes a project -- especially when it becomes a partner in the project -- it has the effect of squeezing out competitive ventures.

Hampered by low investment returns in the stock market and buoyed by rising real estate values across the nation, ambitious officials (some elected, some not) are eager to shape the world according to their vision by making what they view as fail-safe investments in real estate. The growth in the number of requests for proposals from municipalities and economic development groups across the country has been exponential in the past three years.

This is all coming at a time when many long-term real estate professionals believe many land uses are nearing the peaks of their cycles.

These well-intentioned groups have supported public-private partnerships without fully appreciating the potential conflicts and risks that encouraging public entities to cross the line into the private sector can bring — even in the most thoughtful, well-executed plans.

As a private developer I can't help wonder about a conflict such as the following hypothetical: Ambitious City X teams up with grateful Developer Y to design a mixed-use project for a blighted area. Of course, the plans take a while because the project must be fully vetted with numerous city departments. Market cycles get missed, or the end product is not what the market desires — the proverbial design by committee — and only a portion of the project attracts tenants.

Meanwhile, Private Developer Z has an anchor tenant and wants to start her more desirable building in the same market area.

Will the city feel compelled to allow a competitive product in the marketplace?

Will the city subsidize the rents in its project, thus usurping Developer Z's ability to lease the remainder of her project?

These public subsidies serve to make private development less appealing to those not working in partnership with governemnt. And why shouldn't this be the case? The government is taking money from the private developer in the form of taxes and giving it to the competition, in effect forcing the private developer to comete against himself while realizing none of the benefits of the subsidized development!

No, Kelo is a disaster for many reasons. We need to slay this beast on the state level, assuming there is not a national solution to it.

Posted by: Greg at 05:36 AM | Comments (2) | Add Comment
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Last night, while lecturing my class of aspiring paralegals on the judicial branch, we talked about Supreme Court vacancies. I pointed out that I had expected to have one earlier in the week, and that I saw every reason for there to be one by the end of the course (July 14), if not by the time they have their next test (July 5). I noted that it was very likely that we might be surprised by the announcement -- and pointed out that there have been rumblings that Justice O'Connor might be the retiree. Little did I know that it would be only a bi more than tweleve hours before that very scenario would come to pass.

Supreme Court Justice Sandra Day O'Connor (search), the first woman to serve on the nation's highest court, submitted a letter of retirement to President Bush on Friday, setting the stage for a contentious battle over her replacement.

O'Connor — who often provided the deciding, or swing, vote in Supreme Court decisions — will step down from the bench upon the appointment of her successor.

"It has been a great privilege indeed to have served as a member of the court for 24 terms," O'Connor wrote in the one-paragraph resignation letter. "I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure."

She told the president and associates that she wanted to spend more time with her family. Her husband has been in failing health in recent years.

On one level, I am sorry to see her leave the bench. As a moderate/conservative justice, she has more often voted in ways I have liked than in ways I have disliked. When she has written opinions, they have been good with flashes of brilliance. My major complaint, though, is that I never felt like she was operating out of a sense of legal principle, in the manner of justices like Scalia and Thomas, or even Ruth Bader Ginsburg. I could never locate that nugget of core belief within her jurisprudence that separates a great justice (Story or Douglas, for example) from one who is merely good.

As to the question of who should replace Justice O'Connor, I have some thoughts. While there will be pressure to appoint a woman to replace her, I don't know that keeping hers reserved as a "woman's seat" is necessarily an overriding considerationg. I expect that we may see another minority -- perhaps Judge Garza of the Fifth Circuit -- placed on the court instead. If this is to remain a "woman's seat", look for the nomination of Judge Edith Brown Clement or Judge Edith Hollan Jones of the Fifth Circuit. I think the long filibuster of two highly qualified appellate judges, Janice Rogers Brown and Priscilla Owen, make them impossible nominees right now. Don't be surprised, though, if a US Senator is nominated, as they generally are easily confirmed by their colleagues. Definitely out, though, is Alberto Gonzales, as the GOP base is agaainst him.

I'm guessing a nomination will come in about a week -- and possibly two, if the Chief Justice decides to follow O'Connor's lead in departing the Court at this time.

Posted by: Greg at 06:47 AM | Comments (3) | Add Comment
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