Kara Karlson columnist

With the debate raging strong in the Senate over the new nomination - actually, it's mostly the senators debating to the cameras - a review of not-so-distant Supreme Court precedent should show President Bush that nominating Roberts as chief justice might backfire.

Justices with scant paper trails, like Justice David Souter in the 1990s, have been known to come up with some surprising interpretations of the Constitution. Roberts may or may not be a justice who interprets the Constitution, not rewrites it.

Because George W. Bush has the majority, he should have appointed Justice Clarence Thomas, a justice with a paper trail and demonstrated ability.

President George H.W. Bush appointed Justice David Souter in 1990 (actually, he was first appointed to the U.S. Court of Appeals, then to the Supreme Court five months later).

Souter was described as "a complete enigma" because of the same lack of experience as an opinion-writing judge that is pushing Roberts through. With this in mind, Bush 41 decided that this justice would be easy to pass through, and (yay!) he got through a Democratic Senate nearly unopposed.

However, Souter has made some unpopular decisions. A review of Kelo v. New London, the eminent domain ruling that was handed down just last session partly in thanks to Souter's vote, will show why we should not have an enigma going into the Supreme Court, especially as a chief justice.

In the Kelo case, the city of New London, Conn., wanted land to build a riverfront park, hotel and offices for, among other companies, Pfizer Inc. The only problem is that the land in question is privately owned by some people who did not want to see their homes razed.

For the five Supreme Court jokers in the majority who need to brush up on the purpose of government, it is clearly enumerated in the very first paragraph of the Constitution (aka the "supreme law of the land").

The preamble specifies that government is there to provide for defense, establish justice and "secure the Blessings of Liberty."

Go ahead and read it again if you have to. There is nothing about the state being formed for the purpose of making money.

The majority opinion in the Kelo case states, "In addition to creating jobs, generating tax revenue, and helping to 'build momentum for the revitalization of downtown New London,' ... the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park."

I had a problem with the idea of eminent domain before public use became "public purpose" via the oligarchy of five.

The Fifth Amendment states "nor shall private property be taken for public use without due process of law." There is no mention of private property being taken for the benefit of private users in the original Constitution.

If the group of voting members on a town council happens to be a bunch of bigots, then they can easily clear their town of their "problems" (blacks, Hispanics, homosexuals, etc.) by using eminent domain, as they have throughout history.

As Thomas notes in his Kelo dissent, "Over 97 percent of the individuals forcibly removed from their homes by the 'slum-clearance' project upheld by this Court in Berman were black." I don't believe this pattern will change.

This intelligent, well-thought-out dissent to Kelo is only one of the many reasons that Thomas should have been the nominee for chief justice.

In opinion after opinion, Thomas analyzes the actual language of the Constitution, rather than change it to fit whatever agenda he may be pushing. His opinions are based on the actual definitions of those words, and the spirit of the Constitution.

Thomas also has experience with almost 14 years on the bench at the Supreme Court compared with Roberts' almost three years on the D.C. Court of Appeals.

Isn't a fight worth fighting worth actual fighting? The Bush administration should have prepared for hard scrutiny, and Thomas is obviously a more than capable jurist.

What we don't need is another 30 or 40 years of a Souterlike Roberts, or any one of the many activist judges who don't interpret the meaning of words, but change the word entirely.

Nominating an enigma instead of a justice is one of the mistakes from his father that the current Bush should not have repeated.

Kara Karlson is a journalism senior and her favorite Supreme Court member is Justice Clarence Thomas. She can be reached at letters@wildcat.arizona.edu