September 19, 2011

Conn. Justice ‘Apologizes’ to Susette Kelo for Eminent-Domain Decision, But Still Feels He Ruled Correctly (Update: News London Day Ignores)

KeloHouseMonumentIt appears that it’s not news anywhere but at the Hartford Courant, where “Little Pink House” author Jeff Benedict reported the development on Saturday, and at Reason.com (HT to commenter dscott), which linked to the Courant story earlier today. I suspect it won’t get much coverage at other establishment press outlets.

The development is that one of the four Connecticut Supreme Court justices in the 4-3 majority which ruled against Susette Kelo and the New London, Connecticut eminent-domain holdouts, ultimately sending the case to the U.S. Supreme Court, which ruled 5-4 against the plaintiffs in Kelo vs. New London, has apologized — quite emptily, as it turns out — to Ms. Kelo, face to face:

… I faced that situation at a dinner honoring the Connecticut Supreme Court at the New Haven Lawn Club on May 11, 2010. That night I had delivered the keynote address on the U.S. Supreme Court’s infamous 5-4 decision in Kelo v. New London. Susette Kelo was in the audience and I used the occasion to tell her personal story, as documented in my book “Little Pink House.”

Afterward, Susette and I were talking in a small circle of people when we were approached by Justice Richard N. Palmer. Tall and imposing, he is one of the four justices who voted with the 4-3 majority against Susette and her neighbors. Facing me, he said: “Had I known all of what you just told us, I would have voted differently.”

I was speechless. So was Susette. One more vote in her favor by the Connecticut Supreme Court would have changed history. The case probably would not have advanced to the U.S. Supreme Court, and Susette and her neighbors might still be in their homes.

Then Justice Palmer turned to Susette, took her hand and offered a heartfelt apology. Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words “I’m sorry.”

It was all she could do to whisper the words: “Thank you.”

Then Justice Palmer let go of her hand and walked off.

If you stopped reading there, you would walk away thinking that the judge made an unconditional apology. Nope, as Benedict learned when he began pre-publication follow-up with Judge Palmer, who responded as follows in a November 2010 “personal and confidential” (at the time) letter:

“Those comments,” he wrote, “were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city’s development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped.” He later added that he could not know of those facts “because they were not yet in existence.”

So the only reason he’s sorry is that the promised development emanating from what five foolish U.S. Supreme Court justices at the time of the ruling asserted was a “carefully formulated … economic development plan” didn’t come to pass.

Judge Palmer proved that he still doesn’t get it in a mid-August interview with Benedict in his chambers, and at the same time exposed the fatal flaw in so much of what passes for jurisprudence:

Q: Looking back at the Kelo decision (by the Connecticut Supreme Court), how do you see it now? In other words, has it led to good law?

A: I think that our court ultimately made the right decision insofar as it followed governing U.S. Supreme Court precedent. Whether the Kelo case has led to good statutory law is not a question for me or my court; so long as that law is constitutional, its merits are beyond the scope of our authority. Of course, judges are also citizens and, therefore, we may hold a view on the merits, but that view should not interfere with or affect our legal judgment concerning the law’s constitutionality.

I’m sorry, Judge Palmer, that doesn’t cut it. The primary question before your court was whether Connecticut’s statute went beyond the Constitution’s Fifth Amendment restriction of eminent domain to “public use” situations. It wasn’t, or shouldn’t have been, about what had been done in previous cases, while perhaps looking to the Constitution as an afterthought.

You blew the ruling, because even if New London somehow had concocted the most wonderful and “successful” plan on earth with gleaming new buildings all around, it still would not have involved a “public use,” and still should never, ever have been allowed. Judges should not care at all whether statist proponents of eminent-domain expansion have been able to rack up 100, 500, or 1,000 “precedent-setting” cases in front of pliant judges invoking “public purpose” instead of “public use” while allowing property to be taken from private citizens and conveyed to other private citizens. The starting point should always be what the Founders wrote, and determining what the Founders meant. Then, and only then, should case law matter. In Kelo vs. New London, case law shouldn’t have meant a darned thing. The Fifth Amendment’s “public use” limitation could hardly be more clear.

This exposes the fundamental flaw of the legal system’s overdependence on case law. Previous rulings which vary from what the Founders prescribed become the new de facto legal standards, while the importance of the Constitution’s original words and the Founders’ original intent continually diminish.

Judge Palmer isn’t “sorry” in any beneficial sense, and his apology to Susette Kelo, while perhaps a nice surface gesture, is as substantively hollow as the day is long. Now that Ms. Kelo understands the judge’s twisted “logic” as explained to Benedict in the Courant, the guess here is that she totally agrees.

That said, high-profile “apologies” often make news. So far this one hasn’t. I doubt that it will. The establishment prefers statism, and to portray judges, especially leftist judges (Palmer is a Democrat, and Benedict really should have identified his party affiliation), as our infallible betters.

Cross-posted at NewsBusters.org.

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UPDATE, Sept. 20: A search on “Richard Palmer” at the New London Day indicates that hometown paper of the Kelo ruling has ignored Benedict’s column (search string not in quotes; no direct URL available).

UPDATE 2: At DDDb.net (“Assessing the Kelo Apology”) —

Benedict’s account of the apology, and his communication with Justice Palmer about publishing the account, reveals some very disturbing cognitive dissonance (and cowardice) not just in Palmer’s mind, but in the general judicial mind. Palmer’s “sorry” is followed by a sorry explanation of what he meant by “sorry.”

I totally agree.

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1 Comment

  1. Tom, Please Keep Egypt’s Christians in your prayers. – Greg

    http://weaselzippers.us/2011/09/19/egyptian-cleric-christians-must-choose-between-jizya-conversion-or-war/

    The Muslim Caliphate is Coming; Christians Must Choose Between Jizya, Conversion, or War — Coptic Solidarity

    “Nobody denies that the Salafi current has the greatest share in initiating the revolution, as it exposed to the people the loyalty of the Arab regimes to the West, their squandering of the resources of the Umma [Islamic Nation], and their failing to preserve its holy sites.” This is what a leader of the Jihadi-Salafi current, Muhammad Mustafa, also known as “Abu Shadi”, said, stressing that the Salafis never stayed away from politics, but rather applied it in accordance to their understanding of Sharia, and that they also played the role of “enlightening before revolutionizing,” recognizing that popular revolts are the greatest means for change. Abu Shadi also confirms that he was one of Tahrir Square’s preachers during the revolution, and that Jihadi Salafism is present in Egypt, and in large numbers, in the millions, according to him.

    In Abu Shadi’s view, the street [i.e., the average Muslim Egyptian] is in complete agreement with Salafism, and the attack on the Salafis comes from the “enemies of Islam,” or, in his opinion, “the forces of infidels and crusaders.” Moreover, he confirms, with confidence, that the Egyptian Islamic movements have the “mechanism to deal with the infidels”. Abu Shadi sees that it was only fear, and perhaps error [of judgment], which led some Salafi preachers to call against going out [to protest] against Mubarak. He pointed out that Mubarak fought Islamists, and harmed Islam, because he helped the crusaders occupy Iraq and Afghanistan, adding that “there is no obedience to whoever does not govern according to Sharia.” For him, the conditions to be a ruler of a Muslim state are to be Muslim, masculine, and possess [religious] knowledge — even to the degree of being an exegete.

    He called upon the Islamic movements to carefully distinguish between believers and infidels. The leading Salafi explains: “We do not transgress against the Nassara [or “Nazarenes,” the Quranic appellation for Christians], but they must either pay jizya [tribute, and assume inferior status], convert to Islam, or war. He adds: [Samuel] Huntington said the truth even though he was a liar, for the coming struggle is the clash of civilizations, and Islam will be victorious and rule the world with an “Islamic caliphate”. . . Abu Shady belittles the symbols of secularism in the “lands of Muslims,” describing them as few [in number], and points out that there is confusion among the people regarding “the fact that they are infidels.” He threatened that a statement will be shortly published by the Salafis, revealing the truth about them [the secularists], which “will make the masses beat them with shoes, for we must fight them because they are in the trench of infidelity,” according to the Salafi leader.

    Al-Qaeda has a sacred status to Abu Shadi, as its members are “the companions after the [Prophet's] Companions” [i.e., the most faithful of Muslims] adding that it gave the Umma an unprecedented boost, by leading it towards a legitimate goal. He said that the masses rose against the Arab rulers thanks to al-Qaeda and what it presented by way of statements and facts, in sound and image. In a tone full of aspirational gladness, he stressed that the idea of jihad is still alive in Egypt, and that “the struggle will continue until the Umma stands up to the two camps, namely, [for] faith and [against] infidelity.”

    The leading Salafi then goes back in memory to a dark corner, when he published an article entitled “A Vision for Change” in an Islamic blog, which caused his arrest on charges of incitement to revolt against the regime. He says “In prison, electricity was used all over my body.”

    For him, Sufi and Shiite thoughts are quite similar, and are both the main reason for the occupation of the lands of Islam. “Sufism is a malignant disease, a dagger in the body of the Umma; we must get rid of it in order for the Umma to recover — and a strong wind will come to wipe out the enemies of Allah.”

    _____________________________

    Translated by CS from:

    http://tahrirnews.com/حركات-وجماعات/أبو-شادى-الخلافة-الإسلامية-قادمة-وأما/

    Comment by Greg — September 20, 2011 @ 8:16 am

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