Before Supreme Court Justice Sandra Day O'Connor announced her retirement, both sides were gearing up for a battle royale over the next justice, only to discover there isn't much to fight about in President Bush's nomination of Judge John Roberts to the nation's highest court.
Well-known Democratic lawyer E. Barrett Prettyman Jr., who worked closely with Roberts in private practice, says Roberts is both judicious and predictable.
"He respects the court greatly and would not ignore precedent," Prettyman observed.
So much for the image of a radical ideologue who would upset settled law at the first opportunity.
Those who want to fight, no matter the lack of provocation, are looking hard for a reason to mobilize their political machines. The most the left can find to complain about is that Roberts was "insensitive" to frogs when he concluded the federal government lacked the power under the Commerce Clause to stop a real-estate developer from displacing a certain variety of frog listed as an endangered species because the "hapless toad (that), for reasons of its own, lives its entire life in California" and apparently doesn't itself engage in interstate commerce.
That observation might not foreshadow a Justice Roberts willing to overturn, say, United States v. Darby (1941), which overturned 50 years of jurisprudence narrowly construing the Commerce Clause to keep congressional regulation confined within the enumerated powers. Nevertheless, Roberts' understanding of the Commerce Clause does cause this observer to be somewhat optimistic that he may continue in the shoes of O'Connor and help direct the court back toward a more sensible reading of a critical constitutional clause that is closer to its original understanding and protects private property rights.
It is also vital that the new justice follow in, and hopefully expand, O'Connor's defense of private property rights in light of the court's recent ruling in Kelo v. New London (2005) that local governments may seize people's homes and businesses for private economic development. In her last major dissenting opinion in Kelo, O'Connor worried that, "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory." It is the poor who are most vulnerable to having government condemn their homes as "blighted" and replace them with commercial projects that increase the tax base.