Rowman & Littlefield Publishing Group

Stop the Beach Renourishment v Florida: When Will it Stop with the Weakening of Property Rights?

By Kyle Scott

In the case of Stop the Beach Renourishment v Florida the question is raised as to whether the state of Florida's effort to renourish a seven mile stretch of beach near Destin, FL is a regulatory taking and therefore requires conformity with the Fifth and Fourteenth Amendments of the U.S. Constitution. Shore renourishment is when sand is dredged up from the ocean's bottom and redistributed along an eroded shore front. In this case, the shore would be widened by 210 feet. The government will take ownership of the newly renourished land, which then sparks concern among affected property owners. By renourishing the beach and taking ownership of the new land the state has affectively transformed the nature of the owner's property in that it is no longer waterfront property which could diminish the value of the home that once sat on a private beach at the water's edge to which the owner had direct access. If the U.S. Supreme Court agrees with the holding of Florida's court of last resort then this becomes the most recent in a series of takings cases, including most notably Kelo v. City of New London (2005), in which the Supreme Court has weakened the rights of property owners.

The weakening of property rights in the U.S. is symptomatic of a larger problem. We will not know until the winter term whether the Supreme Court will agree with Florida, but we do know that recently, the Supreme Court has found it proper to deprive property owners of their rights. When property is placed in its proper historical and philosophical context we recognize that the threat goes beyond property given the unity of rights expressed by the founding generation and their intellectual forerunners. Rights that were once thought inalienable--such as life, liberty, and property--have become just the opposite; everything is up for grabs. When we allow politicians and the courts to decide for us what our rights are, we put our rights, and ourselves, at risk. Citizens adversely affected by the government have little choice but to press their rights through the judiciary, but the judiciary cannot be the final arbiter of rights for they too can error in their judgment. The court is allowed to determine what our rights are because too few pay attention to its decisions; therefore, when it sides with a government enacted policy, such as a regulatory taking, there is no check on the court's action. A system of checks and balances fails to do either if the branches are in agreement. Nothing less than a fully engaged citizenry that is willing to voice its opposition through means beyond voting will do. If we are not willing to place the final check on government action then we deserve to have our rights gradually taken from us.

Kyle Scott, University of Houston, author of Dismantling American Common Law: Liberty and Justice in Our Transformed Courts and the forthcoming The Price of Politics: Lessons Learned from Kelo v. City of New London. Both books are published by Lexington Books.

Sotomayor's Confirmation Opens a New Battle in the "Confirmation Wars"

By Benjamin Wittes

First Latina Picked for Supreme Court,” read the Washington Post’s banner headline announcing Sonia Sotomayor’s nomination to the high court. “GOP Faces Delicate Task in Opposition.”

It is worth pausing a moment over the second half of this formulation. Only a few years ago, a Supreme Court nominee like Judge Sotomayor could expect quick, nearly unanimous confirmation. She is, after all, a long-serving appellate court judge who has also served on the federal district court bench, as a prosecutor, and as a private sector attorney; she has a stellar academic background. She is, in brief, qualified for the high court in every formal sense. The degradation of the judicial confirmation process has seen many watersheds—most recently, the refusal of most Democratic Senators to support conservative nominees of sterling credentials on the suspicion that the senators would disagree with their future votes. The Post’s headline, with its assumption that Republican opposition to a qualified Democratic nominee is simply a given, represents a recognition on the part of the press that the rules have fundamentally changed.

In the past, first-day headlines concerning a qualified nominee reflected the assumption that confirmation would almost surely follow. “In Pursuit of Conservative Stamp, President Nominates Roberts,” a typical New York Times headline read as late as 2005. “Judge Ruth Ginsburg Named to High Court; Clinton's Unexpected Choice Is Women's Rights Pioneer,” the Post reported in 1993. Even the battle royal over Clarence Thomas began with a whimper from the Post’s headline writers: “Bush Picks Thomas for Supreme Court.” To be sure, headline writers would sometimes note looming ideological fights when the editors saw one coming, as the Post did with Justice Samuel Alito and newspapers did with Judge Robert Bork. But this was not the norm. And they never simply presumed that the opposition party would inevitably oppose a president’s nominee and used a first-day headline to highlight the complexity of the project of opposition.

The change in journalistic expectations regarding nominations is not a creature of media bias or press sensationalism. It reflects reality. Based on recent trends in Supreme Court nominations, Sotomayor can probably expect a minimum of 30 votes against her, maybe more like 40; if she gets fewer, her good fortune will say more about Republican fears of alienating Hispanic voters than about a renewed outbreak of comity in judicial confirmations. She can expect, as well, highly contentious questions about everything she has ever written or said. She can expect a team of operatives to spend the next few months digging up dirt on her. And she can expect insinuations of perjury before the Senate Judiciary Committee to the extent that there is any tension between her voluminous judicial work and the words she speaks in the careful dance in which she will engage with the committee.

To put the matter simply, our system has gone from one in which people like Sotomayor, Chief Justice John Roberts and Alito are shoe-ins for confirmation to a system in which they are shoe-ins for confirmation confrontations.

I wrote Confirmation Wars three years ago because I was struggling with the question of why and how this change took place and what exactly America gets in exchange for the new presumptions we have collectively adopted, other than political battles that serve to energize both political bases. I remain convinced that the trade has been a bad one, one that offers only the crudest sort of check on executive appointments to the judiciary and that, along the way, puts nominees in the most untenable and unfair situations.

In the recent past, this argument has largely moved conservatives, for a Republican president was naming judges and Democrats in Congress and their affiliated interest groups were opposing them, deploying procedural tricks—some of them novel, some of them pioneered by Republicans during the prior administration—to block fair and timely consideration of nominees. Now, however, the tables are turned. A popular Democratic president with a strong Senate majority is naming judges, and Republicans are openly contemplating the adoption of tactics they only recently decried as unconstitutional. They will surely also adopt the premise that underlies the use of those tactics: That senators should aggressively question nominees for their views on contested legal questions and condition their votes to confirm the nominees on the answers they receive. The change in party control will, of course, produce comical hypocrisy among liberals too. They will suddenly discover a newfound appreciation for deference to presidential selections and for the obligation of nominees to remain silent in the face of precisely the sort of extortionate questioning they did so much to establish as standard fare.

In this environment, I suspect that one of the basic theses I advanced in Confirmation Wars will become once again evident: the change in the judicial confirmation process American has been experiencing over the past several decades is not fundamentally partisan in nature—an evil wrought by Democrats and liberals on the one hand or by Republicans and conservatives on the other. It is, rather, an institutional shift, a change in the Senate’s bipartisan and cross-ideological posture towards the executive and the judicial branches over time.

The current moment is a delicate one—one in which we will consummate the institutionalization of confirmation wars as a permanent feature of our political culture if we do not deliberately and self-consciously push back against it. We have to look ourselves in the mirror and ask some uncomfortable questions: Do we really want a political and legal culture in which the Washington Post quite reasonably regards it as so self-evident a reality that a highly qualified nominee will trigger the out-party’s opposition that it belongs in the first-day headline? Do we really want judges who, as a rule, take office having been roughed up by the political party opposite the president’s? Do we really prefer a confirmation environment in which neither President Bush nor President Clinton could place the highly-qualified judges of his choice on the D.C. Circuit Court of Appeals to one in which that court would be enriched by the talented people of both parties to whom the Senate denied a vote? Do we really want to conduct an inquisition into the contents of a person’s soul before confirming that person to the bench? And do we really want to require that person to cooperate with the inquisition as a condition of consideration?

It is not inevitable that we do these things. We came to them through a series of unfortunate choices that altered—sometimes deliberately, sometimes unwittingly—a set of substantive and procedural confirmation norms that existed to protect the independence of America’s court system. While one can easily understand how growing judicial power over recent decades put enormous pressure on those norms, our modern confirmation process was a most unfortunate outcome. It offers dangerous opportunities for members of the Senate to pressure would-be judges for substantive outcomes once on the bench, and if offers dangerous temptations for nominees to yield to such pressure.

And eventually, a nominee will yield. Judge Sotomayor’s nomination takes place in the presence of a Democratic Senate majority strong enough that the pressure on her will be largely rhetorical; it will probably never threaten her ultimate confirmation. But sometime, probably sometime soon, a nominee will confront an opposition party capable, either by outright vote or by filibuster, of rejecting her and demanding reassurance on some substantive issue: abortion, same-sex marriage, executive power, affirmative action, or something else. And this nominee, after squirming and wriggling in the weird under-oath dance the Judiciary Committee now compels, will take the fateful step of addressing the questions directly and saying more than she should about how she thinks about contested legal questions.

Confirmation Wars was my effort to account for the road to this point—a road down which we have already driven far but along which, with a concerted bipartisan political effort, we could still begin to retreat.

Benjamin Wittes, senior fellow in Governance Studies at The Brookings Institution, and author of Confirmation Wars: Preserving Independent Courts in Angry Times, Updated 2009. His writings have appeared in a wide range of journals and magazines including Slate, The New Republic, The Wilson Quarterly, and The Weekly Standard.

Renewed Optimism on Same-Sex Marriage

By Jason Pierceson

Events in 2009 have reshaped the national conversation on same-sex marriage. While the year started with continued consternation by progressives about Prop. 8 in California, most everyone in the country was taken by surprise of the decision by the Iowa Supreme Court to legalize same-sex marriage. This was followed almost immediately by a series of state legislative enactments of same-sex marriage in Vermont, Maine, and New Hampshire, as well as intense political activity on the issue in New York and other states. The Iowa decision also energized activist in California to continue with their grassroots efforts to overturn Prop. 8 in 2010. People on the liberal coasts asked themselves, if Iowa can do it, why can't we?

After these developments, it is unlikely that supporters of same-sex marriage will ever again be on the defensive, as they largely have been since the Hawaii decision started this national conversation in 1993. Indeed, we appear to be light years from the narrative of 2004 that same-sex marriage would help to keep Democrats in the political wilderness as long as litigation and activism continued. But, slowly, the moral landscape has changed.

Part of this shift stems from the continued framing of the issue by courts as one of constitutional and civic, not theological, morality. As the Iowa court stated, "This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all." This has further emboldened activist and elected officials to argue for and enact relationship equality policies, including calls from prominent conservatives and Republicans such as Steve Schmidt and Ted Olson. Indeed, Olson has framed his support of same-sex marriage in moral constitutional terms. "This is about the rights of individuals to be treated equally and not be stigmatized," he stated to the Associated Press.

To be sure, the fight for same-sex marriage is not over. The Defense of Marriage Act and the multitude of state constitutional bans on same-sex marriage and other forms of relationship equality represent a substantial hurdle for same-sex marriage advocates, but this hurdle is significantly less formidable given the new and powerful frame of constitutional and civic morality. In other words, the moral argument is veering towards the side of same-sex marriage supporters, and away from traditionalist opponents.

Before the events of this year, I predicted a modest expansion of relationship equality policies alongside entrenched opposition. Now, however, I am much more optimistic that the power of constitutional and moral arguments is on the side of same-sex marriage advocates, resulting in much more rapid change, that and opposition will become less entrenched and monolithic as more and more people recognize this issue for what is truly is: an issue of civil equality for sexual minorities that demands that the nation and its citizens live up to its fundamental principles.

Jason Pierceson is associate professor of political science and legal studies at the University of Illinois at Springfield and co-editor, along with Gordon Babst and Emily Gill, of the forthcoming Lexington book Moral Argument, Religion, and Same-Sex Marriage: Advancing the Public Good.

The Addition of Sonia Sotomayor Adds Long Overdue Diversity to the Supreme Court

By Nichola D. Gutgold

In 1790 the United States Supreme Court convened for the first time. It isn’t surprising that all its members were men, since almost one hundred years later Myra Bradwell, who passed the Illinois bar exam in 1869 and applied for her license to practice law was rejected because she was not only a woman, but a wife, too. Furthermore, in 1873, the Court rejected her appeal and Associate Justice Joseph P. Bradley noted that as a married woman, she was not competent to make contracts or do other legal work for her clients because of her legal, social and natural defined dependence on her husband in all matters. It was not until the 1970s that the Supreme Court began to use the Equal Protection Clause of the Fourteenth Amendment to challenge state laws that discriminated against women in the workplace and employment in general. Backed by the Equal Pay Act passed by Congress in 1963 and Title VII of the Civil Rights Act of 1964, the Court held up in 1971 that employers could not discriminate in hiring against women who had young children.

With these relatively new cases aimed at gender equality, it isn’t too surprising that representation on the Supreme Court by women has been so sparse. Since 1790, only two women have served on the Supreme Court. In 1981 Sandra Day O’Connor was confirmed and in 1993 Ruth Bader Ginsberg joined her. The third potential justice, Sonia Sotomayor is facing intense scrutiny surrounding the rhetoric of race as she awaits her confirmation.

It should also be of little surprise that Sonia Sotomayor is being ridiculously accused of racism. No doubt in this 24/7 YouTube driven media culture, she is learning that is takes a special communication skill set to manage the tricky terrain of politics, government and the law. The now infamous statement that has been taken out of context and played in a Moebius loop was: "I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life." Though we have heard this often repeated quote again and again in the media, less stressed is Sonia Sotomayor’s impressive record as a federal jurist, as a litigator and as a prosecutor. That she is a two-time Ivy League graduate and did not enter those institutions with a family legacy relates to the majority of Americans who have only their own hard work to propel them forward.

Sonia Sotomayor will likely win confirmation as the third female Supreme Court Justice because she is well qualified and, in the words of Justice Oliver Wendell Holmes that President Obama quoted when he nominated her, “The life of the law has not been logic, it has been experience.” It is vitally important that a justice know “how the world works, and how ordinary people live.” As women continue to enter the legal profession, equal representation of men and women on the Supreme Court is crucial. Though both Sandra Day O’Connor and Ruth Bader Ginsberg downplayed their gender and said that “At the end of the day, a wise old man and a wise old woman reach the same judgment,” it is indeed, long awaited progress that Sonia Sotomayor will bring her wise Latina woman’s voice to the Supreme Court in order to more accurately reflect the experiences of an ever increasingly diverse America.

Nichola D. Gutgold is co-author of Elizabeth Hanford Dole: Speaking from the Heart and author of the following books with Lexington Books: Paving the Way for Madam President (2006), Seen and Heard: The Women of Television News (2008), and the forthcoming Almost Madam President: Why Hillary Clinton ‘Won’ in 2008 (July 2009). She specializes in examining the communication skills of women in male dominated fields.

Sotomayor Pick Historic, but Still a Roll of the Dice

By Jeffrey L. Chidester

Judging from the Beltway tea leaves, President Obama’s nomination of Sonia Sotomayor will almost certainly yield the first Hispanic justice on the Supreme Court. While this historic first is something all Americans should celebrate, how Judge Sotomayor would deliberate on the bench is still an open question. And administration officials are surely keeping their fingers crossed.

In the case of judicial nominations, the gulf between expectation and reality is often very wide. Eisenhower’s selections of Earl Warren and William Brennan remain the model for picks gone awry, as the two joined together to lead perhaps the most actively liberal court of the 20th century. Eisenhower later called the Warren selection “the biggest damned-fool mistake I ever made.” Retiring Justice David Souter, who was nominated by George H.W. Bush, has been a thorn in conservatives’ sides for years due to his decisions on abortion, workers’ rights, and the death penalty. Even greater venom is reserved for Justice John Paul Stevens, another ill-fated Republican selection. A 2003 study by the National Academy of Sciences found Stevens, nominated to the Court in 1970 by President Nixon, to be the most liberal member of the Court.

On the other hand, the outcome is sometimes better. Antonin Scalia was confirmed by a vote of 98-0 in the Senate (interestingly, the two absent senators, Barry Goldwater and Jake Garn, were both Republicans). Many Democrats from the 99th Congress are still grieving over that one.

Stuart Spencer, who ran Ronald Reagan’s two gubernatorial campaigns as well as his 1980 and 1984 presidential bids, said judicial nominations are, by and large, a gamble. In an interview for the Ronald Reagan Oral History Project at the Miller Center of Public Affairs at the University of Virginia, Spencer recalled a similar case of unmet expectations: “When Reagan was Governor of California, he appointed a Chief Justice who looked like a safe bet. I was involved with that somewhat. He totally turned on him before he left in terms of rulings. . . . They’re lawyers. They’re judges. They’re going to do what the hell they want to do. You don’t know what you’re getting. I just don’t think any President really knows what he’s getting until he gets there and he serves.”

Spencer mentioned another historic nomination that occurred early in a new administration: the July 1981 choice of Sandra Day O’Connor. According to Spencer, while O’Connor “stayed the course” for Reagan, Supreme Court selections are still “a roll of the dice for a President. If they want to perpetuate their philosophy, they really have to do some vetting.”

Chances are good that liberal thinkers will be satisfied with the selection – a survey of Sotomayor’s opinions suggests a legal philosophy similar to Obama’s. But some of her rulings have rankled liberals in the past. For example, in 2002, she upheld the government’s “Mexico City Policy” to prevent the funding of international organizations that perform or support abortions. She wrote that the government is “free to favor the anti-abortion position over the pro-choice position.” Pro-choice groups are among the early outspoken opponents of Sotomayor’s nomination.

Before the activists on both sides bring the rhetoric to a fever pitch, we should remember that predicting future judicial reasoning is guesswork at best. Obama may get his Scalia, but he also may get his own Souter. Liberals and conservatives can only sit back and hope it breaks their way.

Jeffrey L. Chidester is Chair of the National Discussion and Debate Series at the University of Virginia’s Miller Center of Public Affairs. He is formerly research director for the Miller Center’s Ronald Reagan Oral History Project. He is the co-author, with Stephen F. Knott, of At Reagan’s Side: Insiders' Recollections from Sacramento to the White House.

Justice Kennedy’s Date With “Dignity”? (Part I: Race and Human Dignity)

By Helen J. Knowles

Watchers of the work of the U.S. Supreme Court eagerly anticipate June, when that institution frequently announces several blockbuster outcomes in the cases that remain to be decided. As the Court brings its term to a close at the end of that month, anticipation mounts as commentators speculate about possible votes and the likely identity of the justices who will pen opinions (for the majority, and separately in concurrences and dissents). June 2009 promises to be no different.

It is perilous to try and predict the direction of the twists and turns that justice will take at the Court during what remains of this year of its work. To be sure, we know that the Term’s end will bring the retirement of Justice Souter, and the inevitable feeding frenzy that will accompany the confirmation hearings of his nominated successor, Judge Sotomayor. Before that happens, however, several major cases remain to be decided. While the results will not be known until the justices choose to make them public, there is one thing about which most commentators agree, regardless of ideology. Articles in the both the New York Times and the Wall Street Journal reach the same conclusion: In Ricci v. DeStefano and Northwest Austin Municipal Utility District No. 1 v. Holder, the man at the jurisprudential center of the Court will be the deciding vote; the key to these cases will be Justice Anthony M. Kennedy. What commentators ignore, however, is what might actually be the key to these cases as Justice Kennedy sees them. That key is the concept of “dignity.” During his two decades on the Court, this concept has been just as significant to Kennedy’s jurisprudence as has been the “man in the middle” role he has played on a bench frequently split between four more conservative and four more moderate men and women.

In this, the first of two blog entries, I look at the potential “dignity” reading that a Kennedy-authored opinion might give to the issues involved in Ricci v. DeStefano (a case which has taken on added significance since President Obama’s nomination of Judge Sotomayor – who was part of the lower appeals court panel of judges whose decision was appealed to the Supreme Court (her participation in the case is discussed over at Scotusblog)). Next time, I will offer a similar discussion of Northwest Austin Municipal Utility District No. 1 v. Holder.

Ricci v. DeStefano

Two years ago, when the Court struck down two school districts’ plans that used race as a factor in assigning students to schools, Kennedy refused to agree with Chief Justice John Roberts’s now-famous postulate about solving racial tensions in America. Kennedy said it was shortsighted of his colleague to proclaim: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This difference of opinion separates these two justices who otherwise share a commitment to a color-blind Constitution, and it is probable that it will play an important role in Ricci. For Kennedy, dignity is likely to be key to the case because it is this concept that resides at the heart of his modestly libertarian reading of the Fourteenth Amendment’s Equal Protection Clause. It is this constitutional provision that Frank Ricci and a group of his firefighting colleagues say that the City of New Haven, Connecticut violated when it denied them the promotions they were due. After creating and administering a race-neutral exam explicitly intended to achieve merit-based selection of individuals to fill leadership positions in the fire department, the City decided it did not like the results. The original emphasis on merit needed reevaluation when no African American firefighter did well enough to be considered for promotion. The race-neutral test (and its results – which placed Ricci (who is white) sixth in a class of seventy-seven individuals) was thrown out. If this is New Haven’s effort at race-conscious hiring in order to achieve diversity amongst its first responders, what happens to those who succeed on merit, but fail because of their race, rather than vice versa?

Over at his legal blog last year, Michael Dorf, Cornell University law professor and former Kennedy clerk, observed that “dignity” is susceptible to labeling as a mere “weasel word” because its ambiguity invites judges to use it when it suits their particular policy needs. Nevertheless, Dorf encourages us to resist this characterization. In terms of the current composition of the Court, this resistance has been voiced most strongly by Kennedy, who makes no secret of his belief that “dignity” is important to constitutional interpretation. Whatever one’s view of using an unenumerated concept (in this respect, “dignity” resembles “privacy”) for understanding the Constitution, the fact remains that Kennedy is the de facto ideological leader of the current Court. When he takes dignity seriously, so do his colleagues.

Two of the briefs filed in Ricci by groups with an interest in the case (interestingly, filed in support of New Haven) seemed to realize this, even though their discussions of “dignity” were fleeting. During oral argument, although Justice Kennedy did not invoke it, the concept of “dignity” played an important role. Mr. Ricci’s attorney made an effort to persuade at least a majority of the Court that New Haven violated “that singular principle of individual dignity” by discriminating on the basis of race.

Justice Kennedy objects to judicial opinions that portray the intractable issue of race as something that can be easily solved by judicial imposition of absolutist readings of the Constitution. In Kennedy’s mind, engaging the country in an honest dialogue about the human “dignity” that attaches to all, regardless of their race, is more profitable than vowing to end discrimination by judicial fiat. In a 2007 Newsweek interview, Kennedy responded to Roberts’s call for greater unanimity on the Court by saying: “My initial reaction was going to be, ‘Just let me write all the opinions.’’” If he does not receive the majority opinion assignment in Ricci, Kennedy is unlikely to be pleased if the chosen author is not sensitive to his dignity-based understanding of individualized equality. Should Justice Kennedy decide to write separately, his past writings strongly suggest he will speak in the language of dignity.

Helen J. Knowles is assistant professor of political science at SUNY, Oswego. She is the author of The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.