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A Sotomayor Ruling Worse Than Kelo

Senator Herb Kohl (D-Wisconsin) brought up the very controversial Supreme Court ruling, Kelo v. City of New London, in which eminent domain was exercised in violation of property rights and the ‘takings clause’ of the Fifth Amendment.

From the transcript of day two of Ms. Sotomayor’s confirmation hearings, via the New York Times:

Sotomayor Confirmation Hearings, Day 2

July 14, 2009

SEN. KOHL: Judge, in a five-four decision in 2005, the Supreme Court ruled, in Kelo versus the City of New London, that it was constitutional for a local government to seize private property for private economic development. Many people, including myself, were alarmed about the consequences of this landmark ruling because, in the words of dissenting Justice O’Connor, under the logic of the Kelo case, quote, "nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," unquote.

This decision was a major shift in the law. It said that private development was a permissible, quote, "public use," according to the Fifth Amendment, as long as it provided economic growth for the community. What is your opinion of the Kelo decision, Judge Sotomayor? What is an appropriate, quote, "public use" for condemning private property?

JUDGE SOTOMAYOR: Kelo is now a precedent of the court. I must follow it. I am bound by a circuit — a Supreme Court decision, as a 2nd Circuit judge. As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis would suggest.

The question of the reach of Kelo has to be examined in the context of each situation. And the court did in Kelo note that there was a role for the courts to play in ensuring that takings by a state did in fact intend to serve the public — a public purpose and public use.

I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights. But the question in Kelo was a complicated one about what constituted public use, and there the court held that a taking to develop an economically blighted area was appropriate.

SEN. KOHL: Yes, that’s what they decided in Kelo. I asked you your opinion, and apparently you feel that you are not in a position to offer an opinion because it’s precedent and now you’re required to follow precedent as an appellate court judge. But I asked you if you would express your opinion assuming that you became a Supreme Court justice and assuming that you might have a chance someday to review the scope of that decision.

JUDGE SOTOMAYOR: I don’t prejudge issues.

SEN. KOHL: Okay.

JUDGE SOTOMAYOR: I — I — that is actually — I come to every case with an open mind.

SEN. KOHL: All right.

JUDGE SOTOMAYOR: Every case is a new — new for me.

SEN. KOHL: That’s good.


SEN. KOHL: All right, let’s leave that.

Ms. Sotomayor’s comments about the Kelo decision are surprising in two ways.

First, she got the facts wrong when she claimed that the property in question was in an economically blighted area.

It wasn’t.

As the George Mason University law professor Ilya Somin notes at the Volokh Conspiracy:

In reality, both sides in the Kelo litigation agreed that the area in question was not blighted. As Justice John Paul Stevens noted in his majority opinion for the Court, "There is no allegation that any of these properties [that were condemned] is blighted or otherwise in poor condition," and "[t]hose who govern the City [of New London] were not confronted with the need to remove blight in the Fort Trumbull area" where the condemned properties were located. That’s what made the Kelo case distinctive: it addressed the question of whether property could be condemned and transferred from one private owner to another solely for purposes of "economic development" in a nonblighted area.

Mr. Somin goes on to note that Kelo was controversial partly because it went beyond condemning property that was ‘blighted’:

The issue addressed in Kelo went beyond this, however, because there was no allegation of blight in the case, even under Connecticut’s broad definition thereof. Sotomayor’s misstatement of Kelo’s holding is somewhat surprising, given that she was surely prepared to answer questions about her own controversial ruling applying Kelo in the Didden case.

So, instead of being open minded, Ms. Sotomayor had already made a ruling based upon the Kelo decision. A ruling in which she expanded the seizure of private property even further.

Coincidentally, Mr. Somin had just written about Ms. Sotomayor’s ruling in the Didden case, in the Orange County Register:

Sotomayor’s property-rights red flag

High-court nominee has upheld extortion by the politically connected.

Assistant law professor at George Mason University, adjunct scholar at the Cato Institute

Saturday, July 11, 2009

It’s not easy for a judge to undermine property rights further than the Supreme Court did in 2005 in Kelo v. City of New London, Conn. But Judge Sonia Sotomayor, who is scheduled to begin Senate cofirmation hearings today on her nomination to the high court, succeeded. In the 2006 case of Didden v. Village of Port Chester she signed on to perhaps the worst federal court property rights decision in recent memory.

In Kelo the court held that the government can condemn a person’s property and transfer it to someone else in order to promote economic development. In Didden, Judge Sotomayor’s federal appellate-court panel went further, upholding the government’s condemnation of property after the owners refused to pay extortion money to a politically influential private developer.

In 1999 the village of Port Chester, N.Y., established a "redevelopment area," giving designated developer Gregg Wasser a virtual blank check to condemn property within the area. When local property owners Bart Didden and Dominick Bologna sought a permit to build a CVS pharmacy in the area, Wasser demanded that they pay him $800,000 or give him a 50 percent partnership interest in the store, threatening to have their land condemned if they said no. They refused, and a day later the village condemned their property.

Didden and Bologna challenged the condemnation on the ground that it was not for a "public use," as the Constitution’s Fifth Amendment requires. Their argument was simple and compelling: Extortion for the benefit of a private party is not a public use. In a short, cursory opinion, Sotomayor’s panel upheld the condemnation.

Although based partly on Kelo’s very broad definition of "public use," the Didden ruling extended the term beyond what Justice John Paul Stevens had in Kelo. In particular, Stevens had noted that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." As an example of such an unconstitutional pretextual taking, he cited a case with far less egregious facts than Didden – a California federal court ruling invalidating the condemnation and transfer of a 99 Cents Only store to Costco, rationalized on the ground that Costco might produce more tax revenue and economic growth.

Like the Didden property, the 99 Cents Only store was located in a redevelopment area. But, the rationale for the 99 Cents Only store condemnation and transfer was at least plausible, since the Costco store might have generated more economic activity and hence a public benefit. In Didden, by contrast, there was no plausible public benefit. Didden and Bologna’s land would not have been condemned but for their refusal to pay Wasser the money he demanded. If that isn’t a pretextual taking, it is hard to imagine what is.

To be sure, Wasser disputed part of Didden and Bologna’s account of the facts. What is truly frightening is that Sotomayor’s panel concluded that Didden and Bologna had no case even if their account of the facts was true.

Kelo was a 5-4 decision, denounced by many on both left and right. The next few Supreme Court nominees could well determine whether it is overruled – or is expanded to weaken property rights even further. Under the guise of "redevelopment," local governments across the country often condemn property for the purpose of transferring it to politically favored interests. Since World War II, hundreds of thousands have lost their homes. Usually, those displaced are poor, minorities or the politically weak – a point emphasized by the NAACP in its amicus brief in Kelo. The stakes here are very high.

Judge Sotomayor’s ruling in Didden suggests that she would uphold even the most abusive condemnations, taking the court even further in the same misguided direction.

So Ms. Sotomayor’s answer to Mr. Kohl seems disingenuous at best.

She certainly does not seem to ‘open minded’ at all when it comes to courts seizing private property despite the Fifth Amendment.

Worse yet, for some reason she does not seem to view an amendment to the Constitution as ‘settled law.’

Whereas she does view the rulings of our black robed mullahs are carved in stone.

This article was posted by Steve on Wednesday, July 15th, 2009. Comments are currently closed.

11 Responses to “A Sotomayor Ruling Worse Than Kelo”

  1. wardmama4 says:

    Kelo was scary – this is even more so – wonder if someone will have the guts to go back to this – and get her to say what she thinks.

    But no – like Ginsberg – she will be seated before we find out she endorses and believes in eugenics.

    How can anyone claim that Republicans are the racists – when this bunch is the champion and cheerleaders of stuff that would make Hilter blush?

  2. pdsand says:

    A fine example of her famously mainstream record on the bench, right?

  3. BannedbytheTaliban says:

    “Worse yet, for some reason she does not seem to view an amendment to the Constitution as ‘settled law.’
    Whereas she does view the rulings of our black robed mullahs are carved in stone.”

    My thoughts exactly SG!

    My other thought, were was her sense of Social Justice when the big money hungry corporations were claiming eminent domain over the poor and downtrodden in the name of economic development?

    Or the Constitutions concern for abuse of power by giving elected officials say over who can claim eminent domain?

    The Banned litmus test for Justices:

    Name one instance when your ruling was against your own political beliefs because it was mandated by the constitution.

    • neocon mom says:

      “Worse yet, for some reason she does not seem to view an amendment to the Constitution as ‘settled law.’
      Whereas she does view the rulings of our black robed mullahs are carved in stone.”

      Loved Tom Coburn leaving her speechless with something similar to this today.

  4. U NO HOO says:

    Eminent domain should be used only in EXTREME situations. Maybe we should constitutionalize a maximum of once per year in the US. (Semi-kidding)

    Case in point, Tocks Island Dam on the Delaware River. The land was taken, structures razed, the environmentalists got their way, and now the land sits/sets idle and people are off their land.

    Slippery slope ring a familiar note?

    • pdsand says:

      What about the private golf course on Long Island that the city used eminent domain to seize and convert into a public golf course?

    • U NO HOO says:

      Yeah, the golf course, and the fact that Kelo land is also, as I understand it, now just laying/lying dormant after all.

      I just can’t get lying/laying sitting/setting straight in my mind after all these glucose sotted years.

    • pdsand says:

      objects lay, people lie, right?

  5. proreason says:

    Red Sonya is selective in her memory and selective in her application of precedents.

    Like anyone else would be.

    The fact that her selection in controversial matters is consistently on the side of uberlib communistfacist doctrine is probably just coincidence.

    We’ll know for sure in 20 years.

    If the country is still around.

  6. canary says:

    Sotomayer: I must give it the deference that the doctrine of stare decisis would suggest.

    “I must” ? She just contradicts herself left and right. The AP came out with an article this evening, that she has not messed up once yet. I stopped reading it at that point. The Democrats have turned politics into a social club affair. Anything goes.

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