Supreme Court confirmation hearings - John Roberts / Kelo

I've generally liked what I've heard so far in the confirmation hearings for Judge John Roberts to the Supreme Court, but one thing caught my attention and does bother me.

Judge Roberts, speaking about interpretation of the Constitution to Sen. Orrin Hatch :

In terms of the application of the law, you begin, obviously, with the precedents before you. There are some cases where everybody's going to be a literalist. If the phrase in the Constitution says two-thirds of the Senate, everybody's a literalist when they interpret that.

Other phrases in the Constitution are broader: unreasonable searches and seizures. You can look at that wording all day and it's not going to give you much progress in deciding whether a particular search is reasonable or not. You have to begin looking at the cases and the precedents, what the framers had in mind when they drafted that provision.

In questioning about the recent Kelo v. City of New London decision and the government's power of eminent domain, Judge Roberts had this to say:

Well, in the first year in law school, we all read the decision in Calder against Bull, which has this famous statement that the government may not take the property of A and give it to B. And that certainly was quoted in the dissent -- in Justice O'Connor's dissent.

The Kelo majority, though, said if the legislature wants to exercise that power, basically that the court's not going to second- guess the judgment that this is a public use.

And I do think that imposes a heavy responsibility on the legislature to determine what they're doing and whether it is a public use or if it's simply transferring from one private party to the next.

The Supreme Court does not allow Congress to determine what is or isn't an 'unreasonable search'. Why is it proper then for the Supreme Court to defer to Congress on what is or isn't a 'public use' for the purposes of eminent domain?

This is precisely where I think the Supreme Court failed in Kelo. The Court was asked for an interpretation of the 'public use' clause, and the Court basically ruled that a 'public use' is whatever Congress or a state legislature says it is. In this case, the Court refused to perform its constitutional duty to check the government's power of eminent domain against its citizens.

Where does Judge Roberts stand on this issue?

ROBERTS: Well, the Kelo decision, obviously, was just decided last year and I don't think I should comment on whether it was correct or not. It stands as a precedent of the court.

It did leave open the question of whether it applied in a situation that was not a broader redevelopment plan. And if the issue does come back before the court, I need to be able to address it without having previously commented on it.

Who knows? I'd probably vote to confirm him though, and hope that an eminent domain case would come before his court sooner rather than later. He clearly has a very sharp knowledge of the law and understands the divisions of power within the branches of government better than most of the Senators who were questioning him (Senators, who by the way, are tasked with actually making our laws).