Is President Obama really going to orchestrate the return of Manuel Zelaya to power?  My reasonable liberal friends assure me that the President is just posturing and, for diplomatic reasons, aligning himself with Latin American governments in demanding the restoration of Zelaya, i.e., he’s not really serious.  But make no mistake, there are leftist columnists out there sincerely demanding the return of Zelaya to power.

I freely admit there were serious procedure irregularities (if not outright constitutional violations) in Zelaya’s removal  from office and exile from Honduras. Likewise, there’s no disputing that nearly every nation to address this crisis has called for Zelaya’s restoration to office.  But, how can we deny that this was an action sanctioned unanimously not only by the 15 members of the Honduran Supreme Court, which issued a sealed arrest order for Zelaya on June 26th, but also by the 126 members of the nation’s unicameral National Congress, which, by resolution, cited Zelaya’s “manifest irregular conduct” as the basis for his removal.

Are foreign governments, particularly our government which was so loathe to “meddle” in a clearly stolen election in Iran, in a better position to determine the lawful head of government in a tiny Central American country than the unanimous members of the entire judicial and legislative branches of that nation?

If President Obama and his administration actually facilitate Zelaya’s return to power, it would certainly be the most despicable act of his presidency thus far.

In an earlier post, I warned the Right to “be wary not to dwell on [Sotomayor's] dismissive treatment of Frank Ricci.”  Upon the Supreme Court issuing the Ricci v. DeStefano decision today and the media’s complete misunderstanding of it, I hereby withdraw my earlier admonishment.

The one and only thing that should be understood about this case as it relates to Judge Sotomayor’s nomination is that all nine members of the Supreme Court found that Sotomayor’s court was in error.  Press reports that the Court “ruled against Sotomayor 5-4 along partisan lines” fundamentally misrepresent the decision issued today.

To understand exactly what happened, it’s crucial to go through the procedural history of the case.

Upon the completion of the fact-finding portion of the case (discovery), the plaintiff firefighters and the defendants, the City of New Haven and its mayor (DeStafano), each moved for summary judgment — a ruling by the court that they were entitled to judgment as a matter of law, without the need for a trial. 

The trial-level court granted summary judgment to New Haven and denied summary judgment to the firefighters.  The decision effectively ended the lawsuit.
 
That decision was then appealed to the 2nd Circuit Court of Appeals, where, as is its custom, a panel of three of the justices would rule.  Judge Sotomayor was the senior member of that panel, which issued what’s called a summary order affirming the lower court’s decision.  Summary orders provide no detail of the case and cannot be appealed any further (meaning, to the Supreme Court).

At this point, the firefighters’ case was dead forever, but for one judge on the 2nd Circuit Court of Appeals (who wasn’t on this 3-judge panel) demanding that the case be heard by the entire 2nd Circuit (en banc).  Sotomayor’s panel thus withdrew its summary order and instead issued a unanimous per curiam opinion.  That opinion, probably written by Judge Sotomayor, was eight sentences long, essentially analysis-free and likewise affirmed the lower court’s decision.  An appeal thereafter to have the entire Circuit reconsider that opinion en banc was denied by a vote of 7-6.  Judge José Cabranes and Chief Judge Dennis Jacobs wrote opinions in dissent from the denial of rehearing, urging review by the Supreme Court.

In any event, if not for the objection of one judge after Sotomayor’s original summary order, the firefighters would have had no further recourse.  But Judge Sotomayor was forced to withdraw her summary order, thus allowing appeal to the Supreme Court, which today issued its 5-4 opinion.

The media has spun the 5-4 margin as a narrow defeat of Judge Sotomayor’s position.  Such a conclusion is not only false, but ridiculous.

The majority opinion of 5 judges not only reversed the trial court’s grant of summary judgment in favor of New Haven, but also reversed the trial court’s denial of summary judgment to the firefighters and instead granted summary judgment in their favor.  Because of the Supreme Court’s decision, the case is still effectively over (without the need for a trial), but this time the firefighters won as a matter of law.
 
The dissenting opinion, written by Justice Ginsburg and signed onto by 4 justices, disagreed with majority’s grant of summary judgment in favor of the firefighters, but agreed with the reversal of summary judgment in favor of New Haven. 

In other words, all nine justices agreed that summary judgment should not have been granted in favor of New Haven, a finding that Sotomayor had affirmed twice — once by summary order and once in an analysis-free, eight-sentence opinion.  Justice Ginsburg also found that Sotomayor’s court had used the wrong standard: “The lower courts focused on [New Haven]’s ‘intent’ rather than on whether [New Haven] in fact had good cause to act.”

Needless to say, it’s troubling that a nominee for the Supreme Court would sign on to (and probably write) two analysis-free decisions that all nine members of the Supreme Court found was not only in error, but apparently predicated on the wrong standard.

Notwithstanding the various pronouncements of Obama-toady Andrew Sullivan that the “neocons” (whatever that term used to mean, Sullivan uses it as a thinly-veiled reference to “pro-Israel, Jewish Republicans”) are “outright hoping for the coup to succeed,” in actuality it appears it is this Administration and President Obama himself — having adopted Scowcraftian, “realist” foriegn policy — that have thrown their lot behind the Mullahs.

As Robert Kagan argues out in his troubling Washington Post column from today:

Obama never meant to spark political upheaval in Iran, much less encourage the Iranian people to take to the streets.  That they are doing so is not good news for the president but, rather, an unwelcome complication in his strategy of engaging and seeking rapprochement with the Iranian government on nuclear issues.

One of the great innovations in the Obama administration’s approach to Iran, after all, was supposed to be its deliberate embrace of the Tehran rulers’ legitimacy.

*          *          *

The idea was that the United States could hardly expect the Iranian regime to negotiate on core issues of national security, such as its nuclear program, so long as Washington gave any encouragement to the government’s opponents.  Obama had to make a choice, and he made it.  This was widely applauded as a “realist” departure from the Bush administration’s quixotic and counterproductive idealism.

*          *          *

[O]nce Mousavi lost, however fairly or unfairly, Obama objectively had no use for him or his followers.  If Obama appears to lend support to the Iranian opposition in any way, he will appear hostile to the regime, which is precisely what he hoped to avoid.  Obama’s policy now requires getting past the election controversies quickly so that he can soon begin negotiations with the reelected Ahmadinejad government.

How ironic that adopting the foreign policy approach formerly championed by the moderate Right (George H.W. Bush, Jim Baker, Gerald Ford, etc.) may leave President Obama (largely perceived as the world’s leading agent for “hope and change”) as an obstruction to democratic liberalization and the progressive Westernization of the Middle East and Islamic world.

n.1. Daniel Pipes, perhaps the leading (what Sullivan would call) “neocon,” stated the Mullah’s hijacking of the election has resulted in the following positive developments:

• Supporters of the opposition candidates have not accepted the results, leading to riots in Tehran. In the description of the Los Angeles Times, “Searing smoke and the smell of burning trash bins and tear gas filled the night sky. Protesters poured into key squares around the capital, burning tires, erecting banners and hurling stones at riot police on motorcycles, who responded with truncheons.”

• [The] sham election may be a turning point, the moment when the much-suffering population found its collective voice against the regime. It bears noting in this regard that the Iranian population in 1978-79 mounted what was perhaps the largest-scale rebellion ever against a government. It could do so again.

Sullivan’s straight-faced interpretation of Pipes’s comments: “Pipes wants Ahmaindejad to succeed” and “Pipes supports Ahmadinejad.”  How ironic that Sullivan uses a quote from George Orwell as the masthead for his blog.

n.2. Various leftwing columnists are vigorously attacking Bob Kagan assertion that Obama actually wants the uprising to fail.  Says Jonathan Chait:

I can’t prove that this is false because I don’t have access to Obama’s inner thoughts. But I strongly suspect it’s false. Moreover, I tend to agree with Obama’s argument that vocally supporting the demonstrators would undermine them.

Says Matthew Yglesias:

[T]oday you’re seeing some rightwing pundits getting mad because Obama is acting like a president rather than like a pundit.

Says Matt Duss:

How then to explain his State Department reaching out to Twitter and asking them to delay their scheduled maintenance, in order to allow the continued use of this technology that has proven so important to enabling communication within and out of Iran? That one gesture neatly encapsulates, I think, the difference between Bush and Obama on “democracy promotion.”

As I stated below, I’m giving the President’s hands-off approach the benefit of the doubt — recognizing that more decisive comments can be used as ammunition by the Mullahs.

However, since his largely self-absorbed comments Monday, President Obama has gone on to recognize the legitimacy to the “recount” process ordered by Ayatollah ali Khamenei, upon whom President Obama bestows the honorific “supreme leader,” and about whom Obama informs us that he is “worried” about the legitimacy of the election.

Contrary to Chait’s, Yglesias’s, Duss’s, and Sullivan’s various assurances that President Obama stands firmly with the Iranian protestors, all tangible indications are that the President stands on the side of stability.  The State Department’s call to Twitter notwithstanding, we’re still awaiting even one comment from Obama to the effect that the Iranian people have the right to self-determination.

n.3. Keeping up with Sullivan’s contortions on the appropriate U.S. response to Iran is truly dizzying.  On the one hand, Sullivan tells us that Obama’s “two-steps behind” approach and his reactions, generally, thus far are “a good thing” and the approach of “some who at last ‘gets it.’”  And, in the next breath, Sullivan scolds Western leaders “not to recognize Ahmadinejad.”  I can’t bend my mind enough to figure out how proclaiming that “the Supreme Leader of Iran is worried about the legitimacy of the election”  reconciles with a non-recognition of Ahmadinejad as the “election winner.”

n.4. Despite every effort to appear as a non-meddler — shock-of-all-shocks, the Iranian Islamic government is accusing the Obama Administration of “meddling in Iran’s election.”

Clive Cook has an excellent article up at the Financial Times on the implication of the so-called “public option” of ObamaCare.  The “public option” would be a federally-funded public health insurance carrier (not unlike Medicare) that would “compete” with private health care insurance companies.  In comments Monday, President Obama assured members of the American Medical Association that the public option would not be a “Trojan horse for a single-payer system.”

Clive Cook disagrees:

A significant minority of more conservative Democrats are sceptical.  They worry that a public plan would crowd out private insurers and that the US would end up with a national government-run health plan: in effect, Medicare, the existing programme for the elderly, widened to cover everybody.

*          *          *

A less obvious objection [to the public option for all] is that a healthy private insurance market is worth preserving.  The seething hatred many Democrats – and many other Americans of no fixed ideology – feel for private health insurers ignores the value they bring – and the extra value they could add if their incentives were better designed and their customers had the information they needed to make intelligent choices.

If competition is a good thing, competition among insurance providers is a good thing too.  [A]bolishing it [would] abolish pressures for innovation and other kinds of cost reduction.  In other industries, competition pays for itself in spite of the apparent waste of marketing and other forms of duplicated effort.

*          *          *

Shutting it down is not the purpose of the public plan, say its Democratic supporters: the public plan is just one more choice.  This is disingenuous.  If the public plan had to compete on truly level terms with private plans, how would it be able “to keep them honest”?  If it is going to exert the pressure it is intended to and really make a difference, it will have to flex its political muscle, its ability to attract subsidy and its superior buying power: “accept this lower reimbursement or no Medicare patients for you”.  A public plan cannot be just another competitor: it is anti-competitive, and meant to be.

Government “competition” is never fair, in the sense that government never plays by the same rules applied to private industry.  Government doesn’t need to concern itself with turning a profit, and, indeed, when losses to government-run enterprises mount, the government simply funds the losing enterprise with more tax-payer-supplied dollars.   Cook is absolutely right that government-run enterprise is uniquely anti-competitive by nature.

In April of this year, the Lewin Group (an independent health care consulting firm) issued a report about how implementing the public option, as currently conceived, would affect the 170 million Americans who currently have private health insurance.  It found premiums for the public option would be 30 to 40 percent lower than private insurance plans – savings achieved by imposing price controls on doctors.

The Lewin Group concluded the public option would not only attract 28 million new Americans who currently are not covered by health insurance, but would also cause 120 million Americans to leave (or get booted from) their private insurance in favor of the public option — leaving only 50 million Americans in private insurance. 

When the anti-competitive advantages of this public option are combined with the near-infinite scale of the enterprise, the result would be a government-created Walmart for health care — or Medicare on steroids.  How private industry could fairly compete with such a monster no rational person has explained.

Jason Fodeman weighs in on the fiscal insanity of converting 80% of the American health care system to Medicare:

Since Medicare became law in 1965, real per capita health-care expenditures have increased almost six fold.  Medicare has not stood idly while costs have escalated either.  Medicare has as much blood on its hands as anyone.  Medicare has 36 trillion dollars in unfunded liabilities.  The system is broke. 

*          *          *

Medicare’s inadequacies are no surprise.  It possesses the same deficiencies the public has become accustomed to from all forms of government.  For a reminder, just take a trip to the DMV.

On a final note, it’s imparative that sincere advocates of an improved American health care system stop framing the arguments in terms of the number of millions (currently, 48 million) of Americans who do not have health insurance — either through private carriers or via access to Medicare or Medicaid boondoggles.  Health insurance and access to health care (and, in particular, good health care) are very different things.

What’s most important for Americans moving forward is access to affordable and effective health care — whether its by virtue of employer-subsidized private insurance or some other means of access.  In future posts, we’ll discuss the best way for Americans to reduce the cost of health care, while making access universally available.

Below are pertinent portions of the comments made yesterday by President Obama addressed the goings-on in Iran.  Does anyone else notice the odd perspective from which these comments appear to emanate?

I am deeply troubled by the violence that I’ve been seeing on television.  I think that the democratic process — free speech, the ability of people to peacefully dissent — all those are universal values and need to be respected. And whenever I see violence perpetrated on people who are peacefully dissenting, and whenever the American people see that, I think they’re, rightfully, troubled.

My understanding is, is that the Iranian government says that they are going to look into irregularities that have taken place. We weren’t on the ground, we did not have observers there, we did not have international observers on hand, so I can’t state definitively one way or another what happened with respect to the election.

But what I can say is that there appears to be a sense on the part of people who were so hopeful and so engaged and so committed to democracy who now feel betrayed. And I think it’s important that, moving forward, whatever investigations take place are done in a way that is not resulting in bloodshed and is not resulting in people being stifled in expressing their views.

Now, with respect to the United States and our interactions with Iran, I’ve always believed that as odious as I consider some of President Ahmadinejad’s statements, as deep as the differences that exist between the United States and Iran on a range of core issues, that the use of tough, hard-headed diplomacy — diplomacy with no illusions about Iran and the nature of the differences between our two countries — is critical when it comes to pursuing a core set of our national security interests, specifically, making sure that we are not seeing a nuclear arms race in the Middle East triggered by Iran obtaining a nuclear weapon; making sure that Iran is not exporting terrorist activity. Those are core interests not just to the United States but I think to a peaceful world in general.

We will continue to pursue a tough, direct dialogue between our two countries, and we’ll see where it takes us. But even as we do so, I think it would be wrong for me to be silent about what we’ve seen on the television over the last few days.

And what I would say to those people who put so much hope and energy and optimism into the political process, I would say to them that the world is watching and inspired by their participation, regardless of what the ultimate outcome of the election was. And they should know that the world is watching.

And particularly to the youth of Iran, I want them to know that we in the United States do not want to make any decisions for the Iranians, but we do believe that the Iranian people and their voices should be heard and respected.

Is President Obama speaking for himself as an individual, or is he speaking on behalf of the United States government and, by proxy, the American people (and even the people of the free world)?  I count more than 15 references to his own feelings, observations, thoughts, etc. in brief, under-600-word comments.  The frequency in reference to himself provides at least some support to notions that Obama is arrogant, if not a narcissistic. 

n.1. Incidentally,  it’s worth noting that President Obama made these comments without the assistance of a teleprompter.

n.2. Various people, including my old law professor, Jim Lingren, have raised issues about the lack of moral clarity voiced by the President.  For now, I’m giving the President the benefit of the doubt that being too vocal may be used as ammunition for the Mullahs.  However, I would have at least liked to have heard the President say, “America stands by the proud people of Iran.  The will of the Iranian people should prevail.”

In what can only be described as my worst fears of the Boumediene decision realized, U. S. Representative Mike Rogers has told The Weekly Standard that the Obama Administration has instructed U.S. military and intelligence personnel to Mirandize foreign fighters (including suspected members of Al-Qaeda, the Taliban and other jihadists) apprehended on foreign territory.

Boumediene v. Bush was the landmark Supreme Court case, decided last June (5-4), that – apparently for the first time in the history of Western Civilization – made the writ of habaes corpus (the right to seek redress from a U.S. Court) available to aliens captured and held outside the sovereign territory of the Crown (i.e., the state/government).  Boumediene, the petitioner, was being held at the Gitmo detention facility, which is part of the sovereign territory of Cuba, and held by the U.S. pursuant to a long-term lease.

The Bush Administration had taken great pains to select a location and build the prison at Gitmo in order to keep it outside the reach of U.S. Courts.  The Boumediene decision brought the detainees at Gitmo within the reach of U.S. Courts.  My concern at the time was not for the right being granted to detainees to seek redress from U.S. Courts, but for the questions left open, to wit: what other rights were thus accorded?  Would detainees get the rights of all U.S. citizens, i.e., rights under the Bill of Rights, recently-minted privacy rights, etc.?

Well, according to what Rep. Rogers says he saw on his fact-finding mission to Afghanistan, the Obama Administration has stepped to the plate and giving all new “detainees” Miranda warnings:

“I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”

As every red-blooded American knows, a Miranda warning (so named for the 1966 Supreme Court decision, Miranda v. Arizona) is the reading of rights required of police officers and other law enforcement officials in the United States to advise suspected criminals in police custody in the United States of their rights in the United States.  Of course, the individual “Miranda” rights — the right to remain silent, to be warned their words may incriminate them, to counsel, etc. –  are tied to rights under the Fifth and Sixth Amendments.

Beyond the practical concerns of actually reading these rights overseas, it’s rather disturbing that the Obama Administration feels that jihadists are imbued with rights under the U.S. Constitution.  Clearly, they do not view the ongoing struggle in Afghanistan and Pakistan as a war, but as a multi-million square-mile police action.

Judging from his article over at The Daily Beast, the brilliant James Langenfeld apparently read my June 3rd item here at Obama Pundit.  My take:

The effect of rail nationalization is well-documented: popular routes are overpriced to subsidize the less popular ones; cost-benefit decision-making and efficient pricing is cast aside in favor of political expediency; and, the nationalized monopoly obstructs any prospective competitor from entering the market.

Langenfeld’s take:

Amtrak had a government-affairs department rather than a finance department, which proved to be an omen: Train service was provided to states with powerful senators, even if this involved huge losses and few passengers.

The talk then was all about becoming profitable, but the reality has been anything but. Amtrak is now 38 years old, and in middle age shows no sign of moving out of the taxpayer’s house. The government gives Amtrak about $1.5 billion per year, not including an additional $1.3 billion from the recently passed American Recovery and Reinvestment Act.

The bottom line, to me, is that there simply is no compelling reason for the federal government to have nationalized GM; no reason that GM should be picked as a “winner,” as compared to, e.g., Circuit City; no reason to think that the federal government will be able to turn a profit where the private sector had failed; and, perhaps most importantly, no reason to believe that the operation of GM by the federal government will be insulated from political pressures such that Washington politics is elevated over market-driven decision-making — indeed, evidence of Washington pressure has already surfaced in GM’s decision not to close a plant in Barney Frank’s district.

Moments after Scott Roeder, the apparent trigger-man in the George Tiller murder, was apprehended, I (only half jokingly) asked friends if Roeder should be subjected to Bush-Cheney “enhanced interrogations.”  It was somewhat debatable (at least at the time) whether Roeder should be thought of as a true domestic terrorist or a run-of-the-mill criminal, an assassin.

Apparently, in the wake of what Roeder told the A.P., Roeder should definitely be lumped in more with the jihadists than with Mark David Chapman:

[Roeder] claimed from his jail cell Sunday that similar violence was planned around the nation for as long as the procedure remained legal[.]

*          *          *

“I know there are many other similar events planned around the country as long as abortion remains legal,” Roeder said. When asked by the AP what he meant and if he was referring to another shooting, he refused to elaborate further.

So we now have a threat of imminent violence against a general, if not specifically identified, target.  KSM anyone?  This all begs the question: what does the federal government, i.e. President Obama, do in order to protect American citizens?

For a moment, let’s table issues of constitutional rights, protections of citizenship and international law, and instead focus on morality.  Is there a moral right, or even obligation, to subject someone, who is threatening/promising murderous violence, to coercive physical interrogation in order to elicit information that may save lives?  I suspect the claim that “torture doesn’t work” would ring hollow if your loved one performed (late term) abortions.

The point here is that even if you have an absolute moral opposition to all things even approaching torture, these issues can get a little thorny in the “ticking time bomb” scenario.  And, lest we forget there are issues of moral in-equivalence — murdering one abortion doctor is simply not the moral equivalent of murdering thousands of civilians — as well as pragmatism — torturing a Muslim is probably more likely to incite jihadists to terrorism than torturing Roeder is to inciting crazy rightwingers to more assassinations.

The faiures of GM and Chrysler, and looming failure of Ford, are hardly novel for the transportation industry.  As detailed in this informative piece in the Wall Street Journal, the auto industry meltdown closely resembles the pattern leading to the failure of the rail industry — which died in the late ’70s:

First, the contemporary industry of popular transportion (rail in the late 19th century; cars in the 20th century) is thrust into financial prominence.  

Then, not long thereafter, government enacts broad regulatory proscriptions, attempting to transfer costs onto the industry, limiting competition, and resulting in barriers to entry — in the case of rail, it was the Interstate Commerce Act and other price controls; in the case of auto, it was the Wagner (i.e., the National Labor Relations) Act and CAFE standards.

The next step — after many years of survival — is the eventual wholesale collapse of the industry.  The rail industry finally collapsed during the Ford and Carter Administrations; the auto industry is collapsing now.

And, the final step is mass government subsidy/takeover aimed at keeping the industry afloat and, perhaps more importantly, its labor force employed: for rail, Conrail and other insolvent lines were eventually subsumed by Amtrak; for auto, the feds have already bailed out Chrysler and have now bought GM.

The effect of rail nationalization is well-documented: popular routes are overpriced to subsidize the less popular ones; cost-benefit decision-making and efficient pricing is cast aside in favor of political expediency; and, the nationalized monopoly obstructs any prospective competitor from entering the market.

In sum, an industry emerges, is then regulated into oligopoly, eventually collapses under the weight of regulation, and is finally coverted into a national monopoly, where politcal considerations are paramount to market forces.  In the end, the American public loses, and loses BIG.

William, regardless of who was at fault, Didden or his lawyer, once the statute of limitations expired Didden’s cause of action was lost according to Sotomayor.  At some point during this whole affair, he had two legal theories available to him:

1. That the taking was wrongful due to pretext, in the sense of Justice Stevens.  The Supreme Court in Kelo found this relevant only to the property’s inclusion in the renovation plan and was ultimately barred from challenge by the expired statute of limitations in Didden.

2. That a taking for a private use due to extortion is unconstitutional.  This was the attempted work around by Didden.  They wanted to distinguish this from Kelo by including the pretext piece here.  The result was that the Court said, “The ‘taking for private use’ part is a constitutional issue which has been settled by Kelo.  Adding fraud, duress, extortion, mental handicap, or mistake does not create a new constitutional issue – these are separate legal issues with existing statutes of limitation.”

I’m not saying that I necessarily agree with the decision, but if the 2d Court of Appeals holds these two positions, it really does make for a short review.  And with that, I’ll give you the last word.

Hector, the parties in Didden submitted their briefing materials to the Second Circuit before Kelo was handed down; but, the Court (Sotomayor) - properly, in my estimation - waited until months after Kelo to issue the Didden decision.  Thus, the attorneys for Didden didn’t have the benefit of knowing what governing standard would be applied to their challenge at the time they submitted their materials to the Court.

In any event, regardless of the adequacies/inadequacies of the briefing materials (and arguments advanced, or not advanced, therein), the Court (i.e., Sotomayor) was duty bound to search the record to ensure the taking in question accorded with the standards set forth by Justice Steven’s opinion in Kelo.

Obviously, Sotomayor was aware that the City of Port Chester’s taking appears to have been consequenced by the plaintiffs’ refusal to pay a bribe.  And, of course, Justice Steven’s cautionary mandate about “pretextual takings” was likewise available to Sotomayor at the time she issued her opinion.  And yet, not only did she fail to connect those obvious dots, she non-chalantly declined to conduct any analysis at all, and summarily sanctioned a seizure of private property for failing to pay extortion money.

In sum, you’re giving a Second Circuit (and, soon to be, Supreme Court) justice with virtually unlimited resouces, including a team of Yale/Harvard/Columbia/NYU -educated law clerks, far too much deference.  If Sotomayor’s decision was actually predicated on substandard advocacy on the part of Didden’s lawyers, she should have said exactly that in her opinion, so the precedential effect of the case would have been clear. 

Instead, her opinion reads as though any State taking in the Second Circuit, even in retaliation for not paying bribe money, is beyond judicial scrutiny.  It’s a horrendous opinion, and falls far below the standards we should expect of a Second Circuit, let alone Supreme Court, justice.

William, I agree that the analysis presented was short, it is not clear to me what more you would have her say on the property rights issue.

Your reading of Justice Stevens’ majority opinion is correct regarding the ‘mere pretext’ standard, but I think it is largely irrelevant.  The question wasn’t whether or not Didden’s property was wrongfully condemned; the question was: if his property were wrongfully condemned, did Didden pursue his rights in a manner that allows the courts to make him whole?  Didden never challenged the development plan as the statute of limitations had expired and so he tried to work around that deficiency by arguing that his property was wrongfully taken for private use.  Judge Sotomayor makes plain her reasoning in Didden when she quotes Justice Stevens in Kelo,

Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project.

Judge Sotomayor never says that the City did the right thing, never says that extortion is acceptable and never expands Kelo.  Didden (or his lawyers) did a poor job in their challenge and Judge Sotomayor simply states (paraphrasing), “You may have been wronged, but you’ve chosen to go about settling your dispute inappropriately.  The right way to handle this, the way that would allow this Court to potentially find in your favor, would have been for you to challenge the inclusion of your property in the renovation plan – not by arguing, as you have, that the Takings Clause prevents the State from condemning your property for private use.  Kelo makes clear that this is not the standard.  If you had challenged your property’s inclusion in the renovation plan, then we could have taken up the question of a ‘pretext’ in its inclusion in that plan.  As you did not do this (or could not do this because of the statute of limitations), you have articulated no basis upon which relief can be granted.”

Hector, with regard to the statute of limitations predicate, I will assume, without checking, that Sotomayor got that portion of the opinion, and, thus, the actual result, correct.  However, because she weighed into the constitutional issue with more than mere dicta, she provided a legally-binding, alternative holding of the Court…on a very dicey issue without undertaking any actual analysis, which is my biggest gripe. 

While Kelo is both an utter abomination and perhaps the most dangerous decision of the last 50 years, Justice John Paul Stevens, in his majority opinion, at least provided some thresholds standards that the State must meet in order to lawfully seize your property: Justice Steven emphasized that “the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit,” does not constitute “a public use” so as to make a “taking” bona fide.

The most disturbing aspect of Didden, issued just months after Kelo was handed down, is that Justice Sotomayor makes no reference to Justice Steven’s proviso, conducts absolutely zero analysis, and, in effect, treats Kelo as though it held that every government taking is bona fide and completely insulated from judicial scrutiny. 

Of course, what we actually know about Didden is that the taking reeks of pretextualism — Didden’s property was condemned only after, and apparently in retaliation for, Didden’s refusal to pay a bribe to the City’s hand-picked developer to the tune of $800 thousands, plus a share of the business.  And yet, Judge Sotomayor provides an analysis-free imprimatur of what appears to be a patently pre-textual taking of private property by an extortionary private developer.  That Judge Sotomayor will now be rending these types of opinions while sitting on the Supreme Court troubles me greatly.

Briefly, on cert. before the Supreme Court: if the Court is not inclined to hear the case, it’s most likely because there is another (indeed, primary) basis for the decision: the statute of limitations issues, such that the Court’s holding would not ultimately affect the result.  But, that doesn’t give me any more comfort as it relates to Sonio Sotomayor.

William, the McDonald’s analogy was broken out as a second point as it was not intended to address the role of Appellate Courts or how appellate proceedings work, but rather the language used in your summary of Didden.  For example:

Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest; failing Didden’s bribe, Wasser threatened to promptly condemn the land and erect a pharmacy himself.

As I mentioned, I had not looked up the Didden case, and I had written my point solely to caution readers that there are nuances in court that are not always found in summaries.  Some witnesses are believable and some are not.  Some evidence is compelling to a jury while other evidence is found less so.  Because of these things, a casual reader rarely has sufficient information to form a sound opinion on a case, in my opinion.  As it turns out, the lower court dismissed an amended complaint in Didden so this particular case may not be relevant, though the larger reader warning stands.

As to the extension of Kelo in Didden, the attorneys for Didden certainly agree with you, using terms like extortion.  However, the Court’s dismissal of Didden’s appeal appears to have been based on two points: (1) regardless of the nature of Wasser’s actions, a challenge to the purpose of a particular condemnation within a larger redevelopment area is not constitutionally cognizable (Didden’s holding was part of a larger renovation project) and (2) the statute of limitations had expired for Didden to challenge the entire redevelopment area.  Didden could’ve challenged the entire renovation project to protect his rights, but for whatever reason failed to do so until it was too late.  As a separate holding, the 2d Court of Appeals found that there was no unlawful exaction.  So while there may be some doubt as to whether Sotomayor knows what extortion is, as a property rights issue it may be irrelevant and misleading to say that Didden is an extension of Kelo to include extortion.

As of this writing, the Supreme Court of the United States has not granted cert to review this decision.  While this alone is not enough to conclude that the Appellate Court was right, it does suggest that the issues involved are not as crucial to the Supreme Court as other cases they chose to hear.

Hector, I want to address/clarify the points you raised below.

At the appellate level, and for purposes of review, the facts of a particular case have generally been stipulated to, and are a matter of record.  True, some hidden, smoking-gun fact(s) may undermine the criticism of a controversial decision.  But, the judge who authors an appellate decision will include in her opinion facts she finds pertinent to the result she reaches.  So, the McDonald’s/hot coffee analogy is not exactly on point, as it relates to appellate decisions.

As a brief aside, appellate decisions are reached based on papers (“briefs” and the “record”) submitted to the appellate court and, sometimes, oral argument before the appellate court.  “Sitting through the trial,” as it were, is not relevant to an appellate decision.

On Kelo, you are absolutely right that it is the law of the land and appellate courts are bound to abide by it.  However, appellate courts are not bound to extend its holding; indeed, where the factual circumstances warrant, courts should “distinguish” Kelo from the cases before them. 

Kelo involved a municipality seizing private property under the extraordinary power of eminent domain so that a developer could use the land to build a strip mall.  Didden involved a municipality re-zoning certain private property under a category of “redevelopment,” and, thereafter, assigning to a private developer what amounted to autonomous control over the designated “redevelopment” property.  After the property owner [Didden] refused to pay the developer an $800 thousand bribe, the developer had Didden’s property condemned and built his own private business on what had been Didden’s land. 

The holding in Kelo certainly does not require an extension of its logic to permit extortion of property owners.  And, perhaps most troubling is Sotomayor’s analysis-free application of Kelo to Didden:

to the extent that [Didden and his partner] assert that the Takings Clause prevents the State from condemning their property for a private use within a redevelopment district, regardless of whether they have been provided with just compensation, the recent Supreme Court decision in Kelo . . . obliges us to conclude that they have articulated no basis upon which relief can be granted.

Two quick points:

I apologize to those for whom this is obvious, but some readers may not be familiar with the roles that judges play at different levels in the United States.  As a Federal Appellate Court Judge, Sotomayor doesn’t really have authority to ignore any United States Supreme Court decision, including Kelo.  Though I haven’t looked up the Didden case, if there were no legal problems with the decision, it’s not her place, generally, to ignore the finder of fact in the lower court.  Sotomayor’s job is primarily judicial review of legal determinations rather than rehearing the facts of a case (there are some exceptions, of course).

Second, without actually sitting through the trial, it is very easy to be mislead regarding the merits of one side or the other.  This doesn’t stop people from making sweeping conclusions based upon them but it probably should.  As an example, everyone is familiar with the woman who spilled coffee on herself at McDonald’s and won a million dollar settlement in a classic case of a run-away jury.  The other side of the story (the woman received terrible burns across much of her body, McDonald’s had been warned that they were over-heating their coffee and that this posed a danger to the public and McDonald’s specifically chose to ignore these warnings as they felt it would be cheaper to litigate than to change their behavior) is rarely heard.  My point is only that hearing one side of a story is generally not enough to draw an informed conclusion.

So, here is what we know about PBHO’s pick of Sonia Sotomayor to replace departing Justice David Souter on the Supreme Court:

• Her curriculum vitae is first rate, and her qualifications stellar:  valedictorian from Cardinal Spellman High School in the Bronx; graduated summa cum laude with an A.B. from Princeton University; earned a J.D. from Yale Law School, where she was an editor of the Yale Law Journal; worked as Assistant District Attorney in New York Country; nominated by George H. W. Bush, and served, as Judge on U.S. District Court for the Southern District of New York (August 12, 1992 – October 7, 1998); and was elevated Circuit Judge of the United States Court of Appeals for the 2nd Circuit by Bill Clinton on October 7, 1998.
• Her personal story is extremely compelling: she and her family grew up poor in the South and East Bronx — in the Bronxdale Houses housing project and then Co-op City — and she was diagnosed with Type 1 diabetes at age 8.
• Her judicial reputation, according to most legal scholars, is solid, if unremarkable.
• She wrote the majority opinion of the Second Circuit in the Maurice Clarett v. the NFL case, 369 F.3d 124 (2004), which upheld the NFL’s 3-year post-high-school age rule.

Not surprisingly, Judge Sotomayor, largely perceived as a liberal/progressive, is drawing fire from the Right.  But, the Right should be wary not to overplay the “empathy card,” or otherwise seek to dwell on her racially dubious statements, what appears to be a high reversal rate, or her dismissive treatment of Frank Ricci, the dyslexic firefighter, in what appeared to be a textbook case of reverse discrimination.

Of far more importance to me, and what skeptics of this nomination should focus on, are a series of her rulings on property rights.  In an era where four of the remaining eight Supreme Court Justices signed onto the highly dubious Kelo v. City of New London decision, 545 U.S. 469 (2005), which permitted a city to use the extraordinary power of eminent domain to deprive a lawful owner of his property in order to build a strip mall (which was never, in fact, built), and where the sitting President of the United States is attempting to force bondholders to write-off the majority of their interest in General Motors and Chrysler, and has otherwise taken control on the financial industry with sights on the heath care industry, it’s hard to argue that property rights are not under assault.  Here is a look at a few select opinions:

Didden v. Village of Port Chester – Bart Didden wanted to build a pharmacy on land he owned in a redevelopment district in Port Chester; the town of Port Chester, by side agreement, had given Greg Wasser control of the redevelopment district. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest; failing Didden’s bribe, Wasser threatened to promptly condemn the land and erect a pharmacy himself.  Indeed, exactly that came to pass.

On review, a panel of the Second Circuit, on which Sotomayor sat, apparently relying on Kelo, non-chalantly, and conclusorily, brushed aside the naked extortion: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”  The Court’s decision has been strongly criticized.

New York Times v. Tasini – freelance contributions to the Times sued over the paper’s subsequent licensing of their writing to electronic databases that then re-sold the pieces to customers for a substantial profit, flouting the more basic I.P principle that rights not specifically assigned remain with the owner. In her opinion for the Second Circuit, Judge Sotomayor sided with the Times.  On appeal before the U.S. Supreme Court, Judge Sotomayor’s decision was overturned 7-2 by the Court.

Krimstock v. Kelly – in a more positive case on property rights, Sotomayor invalidated New York City’s policy of seizing and holding vehicles owned by suspects accused of DUI and other offenses, and then retaining them for years at a time without allowing the defendants to challenge the seizures in any kind of legal proceeding. 

Merrill Lynch v. Dabit – Judge Sotomayor issued the opinon of the Court, wherein she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law.  (For years, Congress has been attempted to curtail “forum shopping” of class action lawsuits in friendly state courts by forcing plaintiffs into federal court.)  The Supreme Court reversed her decision 8-0. 

Knight v. Commissioner – Judge Sotomayor issued an opinion on the tax deductibility of certain trust fees.  On review, the Supreme Court upheld her result but unanimously rejected her approach as one that (per Roberts) “flies in the face of the statutory language.”

Malesko v. Correctional Services Corp. -  Judge Sotomayor’s opinion extended the implied private action against federal officers alleged to have violated a citizen’s constititutional rights to create an implied damages action against a private corporation operating a halfway house under contract with the Bureau of Prisons.  On review, the Court reversed Sotomayor by a 5-4 vote. 

Byron York had a very interesting piece up over the weekend on how Gitmo has, or may have (depending on your p.o.v.), served as a rallying cry for jihadists.  I suggest everyone read the entire piece, but I’ll summarize the major points below.

Of all the arguments advanced for closing the $200 million Gitmo prison facility, by far the most compelling is that it has served, and continues to serve, as a major recruitment tool for al-Qaeda and other Islamic terrorist groups.  When asked this Sunday on Meet the Press, Senator Richard Durbin (D-IL), who joins the President’s position on Gitmo, identified only one source in support of that claim: Major Matthew Alexander.

For those unfamiliar, Matthew Alexander is the pseudonym for a former Air Force officer, who lead an interrogation team assigned to a Special Operations task force in Iraq in 2006.  According to his bio, Maj. Alexander personally conducted more than 300 interrogations in Iraq, supervised more than 1,000 others, and was involved in the interrogations that led to the killing of al Qaeda-in-Iraq chief Abu Musab al-Zarqawi.  His experiences and conclusions about what drove the foreign fighter insurgency are detailed in this Washington Post op-ed and his book, How to Break a Terrorist: The U.S. Interrogators Who Used Brain, Not Brutality, to Take Down the Deadliest man in Iraq. 

In sum, Maj. Alexander opines that “the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo.”  The Major’s conclusions, taken at face value, present a troubling dilemma: while abuses at Abu Ghraib are well documented with incriminating photography on display for the entire Muslim world, evidence of “abuse” at Gitmo is far more elusive.  The only celebrated allegation was a May 2005 story in Newsweek alleging that U.S. operatives had flushed a Koran down a toilet.  However, the report, based on a single anonymous source, was eventually retracted and Newsweek ultimately apologized.

Thus, while Maj. Alexander may be 100% correct that Gitmo has been used as a recruitment tool for terrorists, the stories of abuse at Gitmo don’t seem to have a factual predicate, and Newsweek apparently served as a propagandist for al-Qaeda and other Muslim terrorists.

Christopher,

The motives of the ”shutter Gitmo” advocates vary enough not to be easily pigeon-holed.  For sure, a large block of the Left seeks to advance a transformed America, as you identify.  But, that’s not necessarily true of all of them, nor is it the case that calls for Gitmo closure should be casually dismissed by the Right.  It’d be helpful to hear a compelling argument from someone on this blog for the need to close Gitmo asap.

As to Fred Kaplan, Dick Cheney and the Left, the former Veep long ago emerged as one of those eternal boogeymen that fuels the juices of true blue members of the Left.  And, while Kaplan’s feckless attack lacked any meaningful detail (“Cheney . . . built a case on straw men, red herrings, and lies.”) – indeed, I can just as easily, and conclusorily, reply that Kaplan built his critique on straw men, red herrings and lies – that doesn’t mean Cheney is going to emerge as an effective spokesman for the Right.  In fact, far from it, if yesterday’s face-off was any indication.  PBHO is simply playing a different ball game when it comes to communication.

In the end, I suspect we’ll see Cheney effective at moving policy, but less effective at swaying the public on himself, the Bush Administration, or the Republican Party.

I’m still digesting that part of President Obama (PBHO)’s National Archives speech addressed to the disposition of Guantanamo Bay detainees.  While the president seems rhetorically committed to closing Gitmo, his fervor to expend political capital in that pursuit remains, at best, suspect .

The movement to close Gitmo has always perplexed me.  At bottom, the colorable arguments for shutting the facility down are grounded strictly in symbolism – which is not to say that symbolic gestures can’t produce tangible benefits: like, for example, quelling passions the facility has provoked and terminating a rallying cry to violent Islamic radicalism.  But does the symbolism outweigh the consequences?

Gitmo is a highly secure, $200 million state-of-the-art facility, surrounded by miles and miles of water.  It’s outfitted with court rooms for the types of military-style tribunals, once conceived by the Bush Administration, which PBHO now says he intends to use to prosecute some Gitmo detainees.  And, perhaps most important, the prisoner conditions inside Gitmo (at least as they exist today) are cleaner and otherwise far superior to most federal prisons.  With the Supreme Court now having accorded the right of habeas corpus to detainees held at Gitmo, one might wonder: what’s the rush? 

If - as appears to be the case - Gitmo is both legally neutral and safer, cheaper, and better for detainees than moving them onshore, is it really worth shuttering the facilities as a purely symbolic gesture simply to curry international favor?