pageok
pageok
pageok
Sotomayor's Misstatement of Kelo:

During the confirmation hearings today, Judge Sotomayor considerably misstated of the holding of Kelo v. City of New London, making the decision seem more limited than it actually was. In response to questioning by Democratic Senator Herb Kohl, Sotomayor refused to reveal her view of Kelo, a standard tactic used by previous Supreme Court nominees, but also incorrectly claimed that Kelo upheld a taking in an "economically blighted area":

KOHL: Judge, in a 5-4 decision in 2005, the Supreme Court ruled that Kelo v. City of New London was a — that it was constitutional for 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?

SOTOMAYOR: Kelo is now a precedent of the court. I must follow it. I am bound by a Supreme Court decision as a Second Circuit judge.

As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis, which suggests 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. [emphasis added].

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. The Supreme Court had already ruled that private-to-private condemnations in a blighted area are permissible in the 1954 case of Berman v. Parker. As I have explained elsewhere, Berman led to numerous abuses, including the condemnation of property under statutes that define "blight" so broadly that almost any area can be condemned. 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.

On the other hand, Senator Kohl was probably wrong to suggest that Kelo was "a major shift in the law." Berman and Hawaii Housing Authority v. Midkiff had already defined "public use" so broadly that virtually any nonpretextual taking was considered permissible, a point I discussed here (pp. 224-25). That said, I am very happy that this issue was raised by a liberal Democratic senator and that he expressed strong disagreement with the Court's holding. For reasons I outline in this article, I don't think that constitutional property rights will ever get more than minimal protection until liberal Democratic jurists as well as conservative Republican ones come to support them. Kohl's comments, like the broad political backlash against Kelo, which included numerous liberals and Democrats, represent a step in the right direction.

UPDATE: I should note that the stipulation by both sides that the land was not blighted is a factual determination that the courts were required to respect. In addition, it is important to emphasize that a "blight" determination is a legal term in property law. IN order to get an area designated as blighted, local governments must go through a special procedure under state law. Thus, it is not true, as some commentators claim, that the Court's recognition of the City's belief that the area was "economically distressed" enough to need "redevelopment" is essentially the same thing as a blight declaration. Economic "distress" has no legal significance in takings law and there are no formal criteria for declaring an area to be "distressed." Most importantly, the Court did not require that economic development takings only be undertaken in "distressed" areas. Rather Kelo permits economic development takings in any area, regardless of its prior economic condition.

asdfgg:
I'm pretty sure her use of the modifier "economically" was intentional. Whether "economically blighted" is an idea that makes any sense can be fairly challenged, but it's conceptually distinct from Stevens unadorned use of the term "blighted."
7.14.2009 2:21pm
Ilya Somin:
I'm pretty sure her use of the modifier "economically" was intentional. Whether "economically blighted" is an idea that makes any sense can be fairly challenged, but it's conceptually distinct from Stevens unadorned use of the term "blighted."

If it was intentional, it was still incorrect. The concept of "blight" is broad enough to subsume "economic blight," as well as other kinds.

In any event, the fact remains that there was no allegation that the area was "blighted," economically or otherwise. Indeed, "economic blight" is actually a specialized term used in some state blight statutes as a rationale for condemnation. Moreover, the Supreme Court explicitly did NOT condition its ruling on the preexisting economic state of the area in question. Rather, it ruled that takings for economic development are generally permissible, regardless of how well the area in question was doing previously.
7.14.2009 2:25pm
Regulan Bloodworm:
" . . a liberal Democratic senator ... expressed strong disagreement with the Court's holding"

I'm surprised/happy too, in that Sen Kohl is connected with a large chain of department stores. Such businesses often favor takings like Kelo's because they are often the recipients of taken land.

Bully for Senator Kohl.
7.14.2009 2:28pm
M N Ralph:
Not sure about the use of "economically" being intentional. First, adding "economically" really doesn't add anything to the common understanding of "blighted." Second, and more importantly, the court didn't distinguish between "blighted" areas and "economically blighted" areas, so the statement she made is incorrect regardless of any dubious distinction between the two. She just made a simple mistake.
7.14.2009 2:29pm
M N Ralph:
Kohl's statement about Kelo strikes me as an example of what Jack Balkan said was the purpose of Supreme Court hearings--for Senators "to make claims about what they believe are the mainstream understandings of the U.S. Constitution" and in the process "create what I have previously called the 'constitutional catechism': the set of assumptions, beliefs, and positions that every candidate who claims to be in the mainstream of American constitutional thought must share." The more both sides express disapproval of Kelo, the more future courts will hesitate to expand it and possibly role it back.
7.14.2009 2:36pm
Joe The Plumber (mail):
but also incorrectly claimed that

Yet she is a bastion of intellect, and her life a story in triumph, for the modern American left.

After all, she went to Yale. And of course that like makes her so smart and stuff!
7.14.2009 2:48pm
Eugene Volokh (www):
Oddly enough, Joe, even bastions of intellect sometimes make errors. It doesn't mean that they shouldn't be faulted for such errors -- but an error such as this one does not materially undermine the error-maker's claims to being smart.
7.14.2009 2:54pm
frankcross (mail):
Actually, this should be a nice sign. This is how precedents get narrowed and distinguished. By fudging on what the language actually said.
7.14.2009 2:56pm
Joe The Plumber (mail):
Oddly enough, Joe, even bastions of intellect sometimes make errors.

These aren't errors. Her whole performance - it is has been comical to watch her pretend she was agreeing with Justice O'Connor re: wise Latina ("the words that I use, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey." - demonstrates she doesn't have the foggiest idea as to what she is talking about.
7.14.2009 3:02pm
Thoughtful (mail):
Joe, that's clearly wrong. If she doesn't have the foggiest idea what she is talking about, it isn't a "performance". The reason you correctly perceive it to be a performance is because she's very cleverly massaging her commentary to make previous very expansive statements on her part seem, in retrospect, minimal, nuanced, and conservative.

EV is clearly right that smart people can, occasionally, be wrong. The question here is whether she is materially misstating something due to error or due to strategic considerations.
7.14.2009 3:39pm
Ursus Maritimus:
she doesn't have the foggiest idea as to what she is talking about.

No, she is confident that neither the Senators nor the Media has the combination of inclination and knowledge to call her bluffs.
7.14.2009 3:50pm
DiverDan (mail):
One would have thought that, with the Didden case being such a hot button for the Republicans in this hearing, Sotomayor would have carefully studied the Kelo decision so that she could make a reasoned argument that the decision in Didden was simply compelled by Supreme Court precedent in Kelo, and thus not really reflective of her personal beliefs. Apparently, Sotomayor has either failed to carefully review Kelo, in which case the mistatement was merely a mistake, but a mistake that is hard to understand, unless her failure was a result of assuming that her Confirmation was a foregone conclusion, so why bother with preparation, or she decided to willfully misstate the holding in Kelo, which is also hard to understand, given the near certainty that such a misstatement would be caught. Yes, even intelligent people can make mistakes, but this one does not reflect well at all on Judge Sotomayor.
7.14.2009 3:58pm
Ben P:
Actually, the winning uninformed comment regarding that line of questioning today has to go to CNN's Commentator.

Grassley begins a long line of questioning about Kelo, interrupted by abortion protester, then they take a break, CNN goes to break with Wolf Blitzer saying "of course, Senator Grassley is from a farm state, and farmers are naturally very worried that their farms can be taken by the government without compensation."

I almost fell out of my chair.
7.14.2009 4:01pm
Early Bird (mail):
I think frankcross has it right, here. This is what judges do when they want to narrow precedent; they say 'we are upholding precedent with our decision,' and then they go on to misstate that precedent to conform with what they're actually doing. Thus, lip service is paid to stare decisis, but old decisions get changed. When this happens often enough, the old precedent gets completely overruled, all the while courts pay lip service to its value. That's what's happening to Roe v. Wade. With Casey and Carhartt, it's getting narrowed out of existence, and yet it's still a 'superprecedent.' So Ilya, calm down. You should be happy that Sotomayor is "misstating" the law here, it's a good sign for your cause.
7.14.2009 4:22pm
PlugInMonster:
Basically we're about to get the most incompetent SCOTUS justice in American history, all for Barry's ethnic political games.
7.14.2009 7:13pm
An Unwise Latina:
The strongest impression I took away from the hearing is that no one is ever going to accuse Sotomayor of being particularly bright. It takes a truly staggering intellect to go into a hearing having insulted white males as a class and promulgate a defense that relies upon slandering Latinas as well by implying that she thought such blatant racism would be "inspirational" to them. Bravo! Well, played. You certainly can't say she is afraid to rub people's faces in it can you?

You would think a person of even average intelligence would realize that claiming not to mean what one has said --- and said repeatedly in many different public forums --- and claiming good intentions in maligning one race to inspire another would only validate her opponent's indictments of her.

Even if one were to buy the "good intentions" argument it is clear that it never occurs to Sotomayor that imprecision in phrasing about such important matters as race, the role of the appeals courts, or government takings should be a disqualifying characteristic for a judge to have. So even if we buy the BS that she never meant that a Latina would render better decisions than a white man, she has only succeeded in changing the reason for her disqualification from racism to incompetence. I don't think she is bright enough to understand the implications of her hand waving over this issue and I don't think she is empathetic enough, or wise enough, to even know that what she did was wrong... both in her original statement and in her defense of that statement. No matter what sort of standard you apply --- Sotomayor's "wise" one, Obama's "empathetic" one, or a more traditional one --- she is unqualified.

In a nutshell, the behavior I have described above is the sum total of why she was picked. It seems Obama picks his
Supreme Court nominees the same way he picks his pastors. None of this should be the least bit surprising to anyone who has been paying attention.
7.14.2009 8:02pm
zuch (mail) (www):
Prof. Somin:
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. The Supreme Court had already ruled that private-to-private condemnations in a blighted area are permissible in the 1954 case of Berman v. Parker. As I have explained elsewhere, Berman led to numerous abuses, including the condemnation of property under statutes that define "blight" so broadly that almost any area can be condemned. 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.
You're nitpicking here. The court said the area was "distressed" (or at least that the CT gummint's determination that it was "distressed" was entitled to some deference; Kelo, p. 13). I don't think her characterisation of the case was fundamentally wrong, even if she didn't use the 'right' words; the exact words used by the opinion, not having the text of such in front of her. There's a fine line between "blighted" and "distressed", but the fact is that she didn't say, as you imply above, that the gummint could take land for "public use" for any reason whatsoever.

Cheers,
7.14.2009 8:24pm
ShelbyC:

You're nitpicking here. The court said the area was "distressed"


The area was distressed, not the property itself. So as opposed to condemning "blighted" property to remove the blight, they were condemning property within a economically distressed area to help uplift the entire area. Big Difference.
7.14.2009 9:06pm
zuch (mail) (www):
ShelbyC:
The area was distressed, not the property itself. So as opposed to condemning "blighted" property to remove the blight, they were condemning property within a economically distressed area to help uplift the entire area. Big Difference.
But Sotomayor didn't say the property was "blighted". She was referring to the area ("economically blighted area"). So she didn't make the claim that you're insinuating she made.

Cheers,
7.15.2009 1:23pm
John Humbach (mail) (www):
Help me with the bottom line. What do we want Sotomayor and SCOTUS to do here?

"Follow the law," and stick with Kelo? Or "make some policy," and cut Kelo down?
7.15.2009 4:23pm