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WASHINGTON — With 11 days to go before it argues at the U.S. Supreme Court in a major property rights case, the libertarian Institute for Justice has already won an important strategic victory thanks to an unusual — and unusually aggressive — lobbying campaign that is usually not seen in Supreme Court cases. As the institute hoped, Acting Solicitor General Paul Clement — who was expected to oppose the institute’s position by filing a brief that supports government eminent domain power in Kelo v. City of New London — let a Jan. 21 deadline pass without filing any brief at all. In oral argument Feb. 22, institute lawyer Scott Bullock will represent Susette Kelo, a New London, Conn., homeowner who is fighting efforts by the city to take her property and other property in her neighborhood and ultimately lease them to private developers. The developers would build a hotel and other amenities to complement a nearby Pfizer Inc. facility. Not having the U.S. government as an adversary is a psychological boost for the institute and other property rights advocates. They say New London’s plan is an abuse of eminent domain power that violates what they see as the Fifth Amendment’s guarantee that the power be reserved for “public use” projects like roads and libraries. The federal government’s decision not to file can also be read as a vindication of the institute’s unusual brand of advocacy, which uses a strong dose of public relations and lobbying to advance its cases. Usually, when adversaries in Supreme Court cases seek support for their side from the solicitor general, they do so quietly, in private meetings with him or his deputies. That is what happened in Kelo, with both property rights advocates and municipal and economic development advocates making their case with the SG in November. But the institute deployed public persuasion as well. It became clear in early December that Clement was not supporting the institute’s position when the deadline for filing amicus curiae briefs on that side of the case came and went. So the institute shifted to persuading the SG to sit out the case altogether. Toward that end, in late December, Clint Bolick, the institute’s counsel for strategic litigation, penned a column for The Washington Times, calling it “unfathomable” and “bizarre” that the government would even consider opposing the property rights point of view in the case. “What is it that is impelling the administration to betray its principles?” Bolick asked rhetorically. “Is it seeking to shelter big business interests that are beneficiaries of eminent domain abuse?” At the same time, the institute released a copy of a letter that was sent to President Bush in October by conservative leaders including Grover Norquist, Paul Weyrich and David Keene, urging the administration not to side with New London. Doing so, the letter said, would be a “serious affront to the promise of expanding property ownership the administration champions.” In his column, Bolick said that when the letter was delivered to the White House, an aide “dismissively dropped it to the ground.” In addition to the column and the letter, the institute has made a major media push that has resulted in a spate of print and broadcast stories on Kelo and on eminent domain “abuse” in general. The institute’s in-your-face strategy was risky and unusual, but it appears to have worked. For reasons he declined to discuss, Clement sat out the case. It was a tough call for Clement, his predecessor Theodore Olson said at a recent panel discussion on the court. “The government is a big property taker,” said Olson, now partner at Gibson, Dunn & Crutcher in D.C. “But you have other people feeling very strongly about property rights.” Chip Mellor III, the institute’s president and general counsel, says a “public groundswell” developed against the United States filing in Kelo. He adds that his group was also able to convince the federal government that it did not have a stake in the matter. Though the federal government often takes private property for projects ranging from roads to military installations, Mellor says those projects, unlike New London’s, fit into the “public use” category that is entirely constitutional. Daniel Krisch, one of the lawyers for New London in the case, says his side was “in close contact” with the SG’s office and points out several ways in which the federal government could assert an interest in the case — including a $2 million grant from the federal Economic Development Administration that supported the New London project. Krisch, a partner in the Hartford, Conn.’s Horton, Shields & Knox, says he was not given an explanation for the government’s decision to stay out of Kelo. But he notes the Bolick column and the letter to Bush that was made public, and adds, “It would be naive to think that didn’t play a role.” Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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