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The Sotomayor Hearings as a Step Forward for Property Rights:

A striking aspect of the Sotomayor confirmation hearing is that she got more questions about property rights than any other Supreme Court nominee in decades. In my post at the New York Times online panel on the hearings, I explain why this is a good thing, despite the generally unimpressive nature of her answers:

One of the most interesting developments in the hearings was the extensive questioning of Judge Sotomayor on property rights issues. In addition to questions posed by Republicans, Senator Herb Kohl, a Democrat from Wisconsin, criticized the Supreme Court's 2005 decision in Kelo v. City of New London, which allowed the condemnation of property for transfer to other private individuals to promote "economic development."

Unfortunately, Judge Sotomayor's testimony on property rights was not especially impressive...

Still, Judge Sotomayor's answers were less important than the very fact of the questioning. Property rights are unlikely to advance beyond the "poor relation" status to which the Supreme Court has generally relegated them unless liberals as well as conservatives begin to support them. The Sotomayor hearings are another step in the right direction. Along with the widespread criticism of Kelo by liberals like Bill Clinton, Ralph Nader and the NAACP, the hearings represent some real progress. Unconstrained use of eminent domain harms minorities and the poor, a reality that has caused some long-awaited rethinking on the left.

I should note that I did not mean to say that the hearings were a "giant" step forward for property rights. That title was drafted by the Times (I hope to get them to change it). Rather, I think they represent modest incremental progress in the right direction.

UPDATE: I accidentally forgot to link to my NY Times piece in the original post. The oversight has now been corrected.

Psalm91 (mail):
It will be very refreshing if your testimony addresses actual legal issues and does not focus on stoking silly fears of racial minorities voiced by whining southern boys.
7.15.2009 10:29pm
Ilya Somin:
It will be very refreshing if your testimony addresses actual legal issues and does not focus on stoking silly fears of racial minorities voiced by whining southern boys.

I don't think I have ever said anything to stoke "fears of racial minorities." Neither, I think, did any of the senators in the confirmation hearings so far, including the southern noes.
7.15.2009 10:50pm
Interested reader (mail):
Could one of the local legal scholars point this non-lawyer to a recommended reading or two on the general concept of zoning laws and their impact on property rights and liberty? I'm interested in a non-specialist's introduction.

For example, a hypothetical state that enacted a mandatory 20-acre zoning rule could effectively shut out everyone but the most wealthy from home ownership, forcing a large part of the population to remain renters forever. This does not strike me as being in the interest of a libertarian society. It's like a soft version of eminent domain: we're not going to take your property, we're just going to jigger the laws so you'll never be able to acquire any property in the first place.

I realize zoning laws are largely local. Do they ever get challenged at the constitutional level as violations of one's right to dispose of property and enter into agreements freely? (See, I told you I'm not a lawyer.)
7.15.2009 10:52pm
:) (mail):
Llya, I understand you are going to be a witness at the hearings tomorrow. I have a quick question, do senators or judge sotomayor get a chance to respond to witnesses?
7.15.2009 10:56pm
Ben P:

I realize zoning laws are largely local. Do they ever get challenged at the constitutional level as violations of one's right to dispose of property and enter into agreements freely? (See, I told you I'm not a lawyer.)


I'm not explicitly familiar with land use law, but the general answer under the US Constitution is no. Zoning is an accepted use of state police power, and Zoning only rises to the level of a taking if it deprives the owner of any reasonable use of the property. (Which was Lucas, a case where the court held an environmental law completely prohibiting beach front construction was a taking).

States, however, may have their own constitutional provisions, and in the wake of Kelo many states passed statutes that purport to protect property rights. However, I seem to remember a theme in blog posts here that many of these statutes could be ineffective at best.
7.15.2009 11:13pm
rosetta's stones:
Somin, just remember, everybody you're speaking to is just as dumb as me, so keep it simple. And for the senators' sake, keep it even simpler.
7.15.2009 11:21pm
Brian G (mail) (www):
The race card come right out. Let's face it, the only one obsessed with race here is Sotomayor. And if she was white, she's be laughed at by everyone in all parties, just like Harriet Miers was.
7.15.2009 11:40pm
John P. Lawyer (mail):
I am confused. Why is it a "step in the right direction" (or any direction for that matter) to discuss property rights at a hearing which is for all intents and purposes serves no substantive function?
7.16.2009 12:34am
Jack Smith (mail):
I hope Ilya focuses on property rights and gun rights and issues of interest to libertarians (perhaps giving Republican Senators more opportunity to comment on the Second Amendment and limited government), rather than on the Ricci case. The latter would be rather dull, but the gun rights and property rights discussions have been quite fascinating.
7.16.2009 5:01am
A. Zarkov (mail):
"Unfortunately, Judge Sotomayor's testimony on property rights was not especially impressive..."

So why have the whining Republicans not called out her errors? Isn't the whole point of the hearings to see how good a judge she might be? How could she get the essentials of Kelo so wrong when she applied Kelo in Didden? I have not really studied Kelo at all, yet when I heard that "contract with a private developer to effect the public purpose" part it seemed wrong. Why did no one react, or did I miss the reaction?
7.16.2009 5:04am
Horatio (mail):
A question for the lawyers:

What's with the kabuki dance? Admittedly, the Constitution gives the Senate the power to advise and consent, but ultimately, Sotomayor - and every other justice - will vote the way they want to vote on any given case before them, regardless of any answers they give before the Judiciary Committee. And, of course, they will never have to answer to anyone for their opinions.

So, other than as an intellectual exercise, why all the commentary on these hearings? She will be confirmed regardless of her answers unless she states that white men can judge the law better than Latina women.
7.16.2009 10:13am
rosetta's stones:
Don't need to be a lawyer to answer that one, horatio. This is part of the advise and consent process... and that process informs future selections and actions of existing courts. Lifetime appointments are lifetime, yes, but the idea is to inform the larger process... not just deal with a single wise Latina (who is possibly the most qualified judge in the land, and possibly the most unqualified, as your bulletpointed implication of a judge's future indeterminate action seems to imply)
7.16.2009 10:24am
Horatio (mail):
Don't need to be a lawyer to answer that one, horatio. This is part of the advise and consent process... and that process informs future selections and actions of existing courts. Lifetime appointments are lifetime, yes, but the idea is to inform the larger process... not just deal with a single wise Latina (who is possibly the most qualified judge in the land, and possibly the most unqualified, as your bulletpointed implication of a judge's future indeterminate action seems to imply)


I can appreciate that it's part of the A &C process. But come on folks - inform all you want - once appointed, she's free to decide what she wants.

Now, a question that should be asked is:

Judge Sotomayor, if you vote to decide a case that is contrary to your comments today and reflected in an opinion you may be assigned to write, will you resign?

Now we all know she'd dance around such a question and never resign, but at least let's "inform" the public.
7.16.2009 10:34am
rosetta's stones:
How about, "I changed my mind?"

Not to apologize for wishiwashiness, but let's hope we all are permitted to change our minds, at times, as long as that change is rooted in a firm process, and good judgment. No need to resign in such a case, is there?

An equally good question, and it's one for the senators themselves, "Are you prepared to drag a judge off a lifetime appointed bench, if they shirk their obligations outlined by firm process and good judgment?"

DiFi is whining about courts' actions, but she's got the power to push for such drag downs if she wants. I believe such an action has to originate in the House, if I recall my Clinton fiasco impeachment soap opera correctly, and the House has frickin John Conyers heading their Judiciary Comm, so they obvoiusly aren't serious about such actions, by definition. I'm game, though, if it's warranted. It's certainly Constitutional, isn't it?
7.16.2009 11:49am
rosetta's stones:
Oh, and I'd like them to start by dragging down that old fossil John Feikens.

It's hard to believe, but this old coot has basically been the CEO of one of the largest public utilities in the world, the Detroit Water and Sewerage Department, for nearly 30 years, operating based upon some consent order or some such legal blather. He approves rates, fees, plans, budgets, labor issues involved I believe... it's ridiculous. He writes frickin' editorials explaining his decrees... and bullies politicians for his preferred actions... legal opinions alone aren't quite enough for our boy... HUH?!

Discharge/emissions permitting was his original in on this, but come on... 30 years of a US Fed judge as water czar?!

He'll die and this madness will mercifully come to an end, and that will be on his tombstone, I bet: "Water Czar of SE Michigan."
7.16.2009 12:01pm
air jordan 2009 (mail) (www):
I am very interested in it, could you please tell me some more imformation? Thank you!
7.16.2009 9:47pm
Zoran (mail) (www):
Not sure that this is true:), but thanks for a post.
Thank you
Zoran
7.18.2009 6:29am