Kelo Revisited

Court Can't Decide Whether Home is Castle
Los Angeles Daily Journal, April 7, 2006, at 8

In Georgia v. Randolph, 126 S.Ct. 413 (March 22, 2006), the U.S. Supreme Court majority ruled that the Fourth Amendment is violated where the police conduct a search of a house with the consent of an occupant, if a co-occupant has objected to the search. I don't necessarily have a problem with this rule though I think the dissent had the better analysis.

What I did have a problem with was the majority's audacity to declare that "[s]ince we hold to the 'centuries-old principle of respect for the privacy of the home, it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.' We have, after all, lived our whole national history with an understanding of 'the ancient adage that a man's home is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.'"

This is the same five-member majority - Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer - that just a couple of years ago declared that the Constitution is not violated when the government takes someone's home and hands it over to pharmaceutical giant Pfizer.

The Constitution apparently allows the government to seize the property of law-abiding citizens but does not allow the government to search it for contraband even when one occupant has consented to the search.

Bloviating Ex-cons

Hero v. Antihero
California Lawyer, April 2006, at 66

Joe Loya proclaims [California Lawyer, Jan. 2006, at 64] himself a hero for not stabbing the man who disrespected him. Yet earlier in his essay he writes, "I already had two strikes against me, so if I attacked that man, I would go to prison for the rest of my life." It is not entirely clear, then, whether this was an act of "heroism" or self-preservation. One thing that is clear is that the three-strike law works!

[In a paragraph that was omitted by California Lawyer, I criticized the magazine for publishing that garbage as a "pro per" column. The "Pro per" column was never intended to be a forum for bloviating ex-cons.]

Confirmation Politics

The Founders and the judiciary
The Washington Times, March 29, 2006, at A22.

Though I like retired Judge Charles Pickering and think he got a raw deal from Senate Democrats, I disagree with a couple of his pronouncements ("Bench repair," Commentary, Sunday).

First, he asserts, "If Democrats think some Republicans won't use the same tactics as those used by Sens. [Edward M.] Kennedy, Charles Schumer and Dick Durbin the next time a Democrat is in the White House, they have to be living in fantasyland."

We have a historical precedent on this issue. President Clinton's nomination of Ruth Bader Ginsburg and Stephen G. Breyer came after the Robert Bork and Clarence Thomas hearings. Republicans could have justified treating the Clinton appointees harshly. Nevertheless, they took the high road, and the former American Civil Liberties Union counsel (Judge Ginsburg) and staff attorney to Mr. Kennedy (Judge Breyer) sailed through the Senate.

Also, though Mr. Pickering is correct to point out that "our Founders never intended the judiciary to be political" — confirmed by the fact that they are given life tenure — the process of selecting federal judges was explicitly made political by having the president nominate the candidates with the "advice and consent" of the Senate.

Finally, if there were not enough votes for cloture of a filibuster, what makes Mr. Pickering think his constitutional amendment has a chance?