Bansal, attorney for ESDC in Atlantic Yards case, is on Obama's short list for Solicitor General, the "Tenth Justice"
Now that President-elect Barack Obama has appointed New Yorkers Shaun Donovan and Adolfo Carrion (much more controversially) to become, respectively, secretary of the department of Housing and Urban Development and head of the new White House Office of Urban Policy, the latter two might offer support to the policies and project of the Bloomberg administration, including Atlantic Yards.
A third New Yorker is also up for a key job with Obama and, while the position almost surely would have nothing to do with AY, she's had a close and controversial relationship the legal battles over the project.
On the president-elect's short list for Solicitor General, who has primary and mostly independent responsibility for presenting the Government's case to the Supreme Court, is Preeta Bansal, a former New York State Solicitor General (supervising 40-50 appellate submissions per week), a member of his transition team, and the lead attorney representing the Empire State Development Corporation (ESDC) in appeals court.
Bansal, a partner in the blue-chip law firm of Skadden, Arps, is obviously an able lawyer. And while the rest of her work may well qualify her to be Solicitor General, her performance in the Atlantic Yards case is the work of an aggressive advocate willing to massage the facts, not the big-picture thinker aiming for justice.
The "Tenth Justice"
According to the official job description:
Except for rare authority exercised by the Attorney General, the Solicitor General has had sole discretion to decide which Government cases involve issues important enough to justify appeal to the Supreme Court and to make the final determination whether the Government's case is good enough to win there.
The Solicitor General is sometimes called the "tenth justice"--the title of a book by Lincoln Caplan.
According to the Publishers Weekly review:
[Caplan] charges that the Reagan administration has compromised the independence of the Solicitor General, the lawyer who is responsible for recommending which cases should be heard by the Supreme Court and for shaping the government's legal position on cases before the Court. Archibald Cox and Thurgood Marshall are among those who have held the post of Solicitor General, sometimes called the "tenth justice."
Bansal, in a 9/1/99 New York Times profile, sounded dismayed by having to play tough advising candidates for judicial nominations: "It wasn't high-minded legal analysis. It wasn't thoughtful. It was about how to package a thoughtful person into a few-second sound bite."
At the AY eminent domain appeal
Representing the ESDC at the 10/9/07 federal appeal of the Atlantic Yards eminent domain case, Bansal argued successfully--but, at times, questionably--for the state's case.
She told the court that Atlantic Yards would “create a publicly-owned sports arena.”
Publicly-owned?, asked a judge.
“And then leased” to a private entity, Bansal acknowledged.
Several people in the crowd snickered, knowing that the lease would be for $1.
She cited the planned Urban Room, “a nice entrance to the subway” and transit improvements “that Brooklyn has been trying to do for decades.” The MTA’s Vanderbilt Yard was “in desperate need of modernization.”
However, there was no testimony in the case that the MTA or “Brooklyn” had either of these on a publicly announced wish list. In fact, MTA board member Mitchell Pally said at a September 2005 hearing, “[The rail yard] works fine the way it is. Forest City Ratner money is not being used to substitute for projects the LIRR wants to do... We’re now going to spend money on projects we don’t want to do, never wanted to do and don’t need? It makes no sense.”
“What if the process is tainted?” a judge asked.
The constitutional analysis, Bansal said, does not depend on the sequence by which Atlantic Yards was proposed and approved. In fact, she confidently gave a hypothetical worst-case scenario in which a smoking-gun memo or video showed that a public official stated, “I want to do this for Bruce Ratner.”
It would not make a difference. “The fact that there might be illicit motive,” she said, even if it’s the principal motive, if it results in public use, “that’s the end of the inquiry.”
She said the issue was whether public officials could have rationally concluded there was some public purpose, and any illicit motive could be addressed through other areas of the law.
Maximum private participation?
With respect to the sequence, she added, the “New York legislature has made a considered judgment that private enterprise-initiated projects… are to be favored.”
Actually, as I noted, when the Urban Development Corporation--the ESDC's official name--was established in 1968 the effort to encourage "maximum" private participation in projects not like Atlantic Yards, but instead intended to get the private sector to finally invest in the low- and middle-income subsidized housing after the ESDC first put in state money.
Few developers can do public-private projects like Atlantic Yards, she added, somehow missing the example of Hudson Yards and other projects with multiple bidders from the start: “The fact that a private developer came to the city is of no constitutional moment.”
Perhaps not. But it's sure no civics lesson.