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What the Didden Case Tells Us About Sotomayor's Attitude Towards Property Rights:

In today's New York Times, leading legal reporter Adam Liptak has an informative article about Sonia Sotomayor's dubious property rights decision in Didden v. Village of Port Chester, which I previously criticized here and here. In Didden, a court of appeals panel headed by Sotomayor upheld the condemnation of two businessmen's property because they refused a politically connected developer's demand to either pay him $800,000 or allow him a 50% stake in their business.

Liptak does a good job of summarizing the case and its importance, though some legal details have inevitably been omitted. I was slightly surprised to see the article draw an apparent contrast between my view of Didden's significance and that of Richard Epstein, the leading University of Chicago and NYU lawprof with whom I coauthored an amicus brief urging the Supreme Court to reverse Sotomayor's decision in the case:

"This is the worst federal court takings decision since Kelo," said Ilya Somin, who teaches property law at George Mason University and helped write the brief. "It's very extreme, and it is significant as a window into Judge Sotomayor's attitudes toward private property."

But another author of the brief, Richard A. Epstein, said the decision in Mr. Didden's case was a rare misfire that provided no larger insights into Judge Sotomayor's thinking.

"It's a disappointment and it's wrong and it's ill thought out," Professor Epstein, a law professor at the University of Chicago and New York University, said of the ruling. "But it's not one of six. It's one of two." (The other poorly handled decision, he said, was Ricci v. DeStefano, which rejected employment discrimination claims from white firefighters in New Haven.)

If this is indeed Epstein's view, it is somewhat in tension with his previous statement that "American business should shudder in its boots if Judge Sotomayor takes the attitude [reflected in her Didden opinion] to the Supreme Court." As he explained in the earlier op ed and I discussed here, Didden is striking because it goes even further than Kelo v. City of New London in allowing private property to be condemned for the purpose of enriching other private parties, without any proof that some sort of public benefit will be achieved. Epstein also pointed out that Sotomayor dismissed the issue with a cursory one sentence statement, suggesting that she didn't even think it was a close call.

Perhaps Epstein merely meant to say that Sotomayor has made only two egregiously bad decisions in important cases (Didden and Ricci v. DeStefano, effectively criticized in this series of posts by co-conspirator Jonathan Adler), and that these two gross errors don't reflect her overall record. I certainly agree that Sotomayor's performance in most cases was far better than in these two, and that she is generally very competent. Nonetheless, I think these two cases are telling precisely because they are unusual. As Barack Obama famously pointed out, "while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult." Didden and Ricci are part of Obama's 5 percent - major cases on important disputed constitutional issues. As Obama emphasizes, a judge's performance in these types of cases is especially critical in determining her fitness for the Supreme Court. Sotomayor simply hasn't handled very many important constitutional cases, so we must carefully consider the few that she has.

Indeed, Didden is probably even more telling than the cases Obama had in mind it was considerably easier than most cases in the 5 percent. It was precisely the kind of "pretextual" taking that even the Kelo majority considered to be unconstitutional.The "truly difficult" challenge here was justifying in favor of the government without even allowing the property owners to present their evidence of a pretextual taking before a jury; it would have been relatively easy to defend a decision going the other way. It is revealing that Sotomayor not only got the outcome wrong, but seemed to think it wasn't even close. If Sotomayor didn't believe that there was a serious property rights issue even in this extreme case, it is unlikely that she would protect property rights under the Takings Clause in any other situations likely to come before the Supreme Court.

UPDATE: Although less important, in my view, than Didden and Ricci, it's also worth noting that Sotomayor made another dubious constitutional ruling in Doninger v. Niehof, an important free speech case where she upheld a public school's decision to punish a student for an internet blog post that she wrote on her own time outside of school grounds. I briefly discussed Doninger in the first part of my LA Times debate with Erwin Chemerinsky. Liberal legal scholars Jonathan Turley and Paul Levinson have been even more critical of Sotomayor's Doninger opinion than I was.

Since Sotomayor has made no more than a handful of important constitutional rulings in her judicial career, the fact that she got three of them badly wrong must be given great weight in assessing her nomination.

UPDATE #2: While I don't want to comment extensively on Ricci v. DeStefano, I should perhaps point out that my disagreement with that decision does not rest on the view that affirmative action is categorically unconstitutional. To the contrary, I think it may well be both morally and legally defensible when used to provide genuine compensation for past racial discrimination. Ricci, however, did not involve any such effort at compensatory justice. For reasons elaborated in Jonathan Adler's posts, Sotomayor's ruling in the case raises many troubling questions even for people who believe, as I do, that the use of racial classifications for affirmative action is sometimes permissible.

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