Skip to main content

Bansal, attorney for ESDC in Atlantic Yards case, is on Obama's short list for Solicitor General, the "Tenth Justice"

(Update 1/5/09: Harvard Law School Dean Elena Kagan was named to the post.)

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.”

Tainted process?

“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.

Comments

  1. Wow, are you whistling past the graveyard. First, you're in denial about Shaun Donovan's support of Atlantic Yards. Now, you are trying to equate advocacy with lying.

    Oh, those snickers from one or two people in the audience, aka courtroom. They will resound in our nation's capital when Ms. Preeta D. Bansal's nomination is brought before the Senate! No doubt someone will raise the issue during her confirmation hearing, leading to an ignominious defeat of her nomination!!

    Nah.

    ReplyDelete
  2. Bobbo, do you have a brain? You think that Oder is saying Bansal shouldn't get the appointment because of her courtroom antics? I don't think so. I think he is looking into her arguments and thoughts as she is a potential presidential appointee. I imagine many newspapers of good repute will look into her past too. No?

    anyway, to the content of the piece, may i just say Hello to the New Boss, Same as the Old Boss.

    ReplyDelete
  3. "She received the “Best United States Supreme Court Brief” award from the National Association of Attorneys General during every year of her tenure as Solicitor General of the State of New York."

    If this excerpt from her bio is accurate, that pretty much clears her on the capability front.
    As to her politics, she clerked for Justice Stevens, which is the best indication of her general political orientation. The Solicitor General tries to win cases, period. You just have to picture her in the courtroom going to bat for Obama and I'm sure you'll feel better about it (provided you back O's decisions, of course).

    ReplyDelete
  4. she won't get the job.

    ReplyDelete
  5. Bobbo should sign his name Bob Windrem.

    ReplyDelete

Post a Comment

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

No, security guards can't ban photos. Questions remain about visibility of ID/sticker system.

The bi-monthly Atlantic Yards/Pacific Park Community Update meeting June 14, held at 55 Hanson Place, addressed multiple issues, including delays in the project, a new detente with project neighbors,concerns about traffic congestion, upcoming sewer work and demolitions, and an explanation of how high winds caused debris to fly off the under-construction 38 Sixth Avenue building. I'll have more coverage.
Security issues came up several times at the meeting.
Wayne Bailey, a resident who regularly takes photos and videos (that I often use) of construction/operations issues that impact residents, asked representatives of Tishman Construction if the security guard at the sites they're building works for them.
After Tishman Senior VP Eric Reid said yes, Bailey asked why a guard told him not to shoot video of the site, even though he was on a public street.

"I will address it with principals for that security firm," Reid said.
Forest City Ratner executive Ashley Cotton, the …

Barclays Center event June 11 to protest plans to expand Israeli draft; questions about logistics

At right is a photo of a poster spotted in Hasidic Williamsburg right. Clearly there's an event scheduled at the Barclays Center aimed at the Haredi Jewish community (strict Orthodox Jews who reject secular culture), but the lack of English text makes it cryptic.

The website Matzav.com explains, Protest Against Israeli Draft of Bnei Yeshiva Rescheduled for Barclays Center:
A large asifa to protest the drafting of bnei yeshiva in Eretz Yisroel into the Israeli army that had been set to take place this month will instead be held on Sunday, 17 Sivan/June 11, at the Barclays Center in Downtown Brooklyn, NY. So attendees at a big gathering will protest an apparent change of policy that will make it much more difficult for traditional Orthodox Jewish students--both Hasidic (who follow a rebbe) and non-Hasidic (who don't)--to get deferments from the draft. Comments on the Yeshiva World website explain some of the debate.

The logistical questions

What's unclear is how large the ev…

Atlantic Yards/Pacific Park graphic: what's built/what might be coming (post-dated pinned post)

Click on graphic to enlarge. This is post-dated to stay at the top of the blog. It will be updated as announced configurations change and buildings launch. The August 2014 tentative configurations proposed by developer Greenland Forest City Partners will change, and the project is already well behind that tentative timetable.


Not quite the pattern: Greenland selling development sites, not completed condos

Real Estate Weekly, reporting on trends in Chinese investment in New York City, on 11/18/15 quoted Jim Costello, a senior vice president at research firm Real Capital Analytics:
“They’re typically building high-end condos, build it and sell it. Capital return is in a few years. That’s something that is ingrained in the companies that have been coming here because that’s how they’ve grown in the last 35 years. It’s always been a development game for them. So they’re just repeating their business model here,” he said. When I read that last November, I didn't think it necessarily applied to Atlantic Yards/Pacific Park, now 70% owned (outside of the Barclays Center and B2 modular apartment tower), by the Greenland Group, owned significantly by the Shanghai government.
A majority of the buildings will be rentals, some 100% market, some 100% affordable, and several--the last several built--are supposed to be 50% market/50% subsidized. (See tentative timetable below.)

Selling development …

Atlanta's Atlantic Yards moves ahead

First mentioned in April, the Atlantic Yards project in Atlanta is moving ahead--and has the potential to nudge Atlantic Yards in Brooklyn further down in Google searches.

According to a 5/30/17 press release, Hines and Invesco Real Estate Announce T3 West Midtown and Atlantic Yards:
Hines, the international real estate firm, and Invesco Real Estate, a global real estate investment manager, today announced a joint venture on behalf of one of Invesco Real Estate’s institutional clients to develop two progressive office projects in Atlanta totalling 700,000 square feet. T3 West Midtown will be a 200,000-square-foot heavy timber office development and Atlantic Yards will consist of 500,000 square feet of progressive office space in two buildings. Both projects are located on sites within Atlantic Station in the flourishing Midtown submarket.
Hines will work with Hartshorne Plunkard Architecture (HPA) as the design architect for both T3 West Midtown and Atlantic Yards. DLR Group will be t…