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My Testimony on Property Rights at the Sotomayor Confirmation Hearings:

As many of our readers know, I testified at Judge Sonia Sotomayor's confirmation hearings before the Senate Judiciary Committee today, on the subject of property rights. My written testimony (which is much more extensive than the brief oral testimony at the hearing), can be read here. It discusses - in greater detail than I could on this blog - Sotomayor's most notorious property rights ruling: Didden v. Village of Port Chester. I also analyze her much better ruling in Krimstock v. Kelly, a case that addressed an issue that will come before the Supreme Court this fall, in Alvarez v. Smith.

I realize, of course, that what I say is unlikely to affect the outcome of the confirmation process. Nonetheless, it was an honor to be the first witness ever called to testify at a Supreme Court confirmation hearing specifically about property rights issues. Far more importantly, the extensive focus on property rights at these hearings (especially compared to the near-total neglect of these issues when past nominees came before the Senate) is a good sign for the future.

UPDATE: A webcast of the oral testimony should probably be available at the Judiciary Committee website tomorrow.

UPDATE #2: A broadcast of the oral testimony is actually available at the C-SPAN website here. It is the first panel of the "evening" tape. My testimony begins around the 44th minute. There is also a question for me by Senator Jeff Sessions about 15-20 minutes later, where he says the testimony led him to think that the Didden case was worse than he had previously thought.

UPDATE #3: I have corrected the inaccurate link to my written testimony.

Johnny Canuck (mail):
I watched your performance and thought you did well. I know nothing of your subject: you were coherent and properly shocked me. (I will forgive you overlooking Cone's service with the Toronto Blue Jays)

I couldn't help thinking that if I were organizing the hearings, I would have put all the panels on first; then had nominee respond.

From your presentation, I would have a concern that, despite Sotomayor's claim to be super diligent to understand the facts, she appeared to look for an easy technical way to deal with her case load. And was this what also happened with Ricci?
7.16.2009 10:21pm
Johnny Canuck (mail):
Your first link connects to one of your prior posts rather than what I assume was meant to be your formal written testimony.
7.16.2009 10:26pm
sobi:
I missed you by about 15 minutes. Frustrating, I wanted to watch.

If you are of a mind, I would appreciate a follow-up post with a link to your contribution, specifically. Didden was ridden with problems. :)
7.16.2009 10:38pm
24AheadDotCom (mail) (www):
It's good to know that Ilya Somin's band kept playing even while we're about to get a former member of two far-left racial power groups on the Supreme Court. Does anyone have an actual plan to prevent that? Because, if her popularity plummeted in the next week things might not work out as well as Obama wants them to. Does anyone besides me have the inkling of a plan to do that?
7.16.2009 11:12pm
One-Time-Poster (mail):
Congratulations on your testimony, Prof. Somin. I'm basically a liberal but have learned a lot from your writings and am not sympathetic to Sotomayor on this particular topic.

I'm wondering if you brought up the NAACP intentionally to Sen. Sessions, given his [infamous] feelings about minorities in general and the NAACP in particular.
7.16.2009 11:35pm
Ilya Somin:
I'm wondering if you brought up the NAACP intentionally to Sen. Sessions, given his [infamous] feelings about minorities in general and the NAACP in particular.

I brought it up for the benefit of liberals and moderates watching the hearings, to let them know that property rights is not just an issue for "conservatives" or whites.
7.16.2009 11:40pm
Shacho (mail):
Dammit, Ilya, until I watched the video of your testimony, I thought "Ilya" was a girl's name, and I always imagined you as a hot female law professor. Thanks for crushing my dreams.
7.17.2009 12:08am
lucia (mail) (www):
Shacho,
Everyone knows that Ilya is a hot guy's name. Didn't everyone watch "The Man From Uncle"?
7.17.2009 12:30am
Psalm91 (mail):
Prof: You were refreshingly down to earth compared to several of the pompous other academic witnesses, but we've known Ilya to be a man's name since "The Man From Uncle".

Nevertheless, regarding your characterization of SS' "notorious" decision, which if I have followed things was not "her" decision, isn't this a very esoteric "inside baseball" kind of ideological critique, that is, very important to a small group of libertarian or other academics but otherwise of no import to the real world of judging? You can find narrowly focused critics of anyone. To Mr. Kopel, the protection of fewer nunchakus are the beginning and end of the world, to others it is the impending danger of French law, but what has this got to do with the day to day business of appellate judging? None of the hostile witnesses really had anything to say about that.
7.17.2009 12:31am
Psalm91 (mail):
Lucia: You're too fast re TMFU.
7.17.2009 12:34am
Leo Marvin (mail):

Nonetheless, it was an honor to be the first witness ever called to testify at a Supreme Court confirmation hearing specifically about property rights issues.

It would have been an honor even if you weren't first. Congratulations.
7.17.2009 2:08am
Leo Marvin (mail):
Shacho, thanks for the laugh. The thought picture of a horny guy in cyberland fantasizing about Ilya Somin the hot babe is just priceless.
7.17.2009 2:09am
JK:
Prof Somin did a good job, but I generally think this is an issue where the case law is so off the mark that we probably need a consitituional amendment.

I feel quite strange taking that position as my guess is that you polled the public on the issue of takings I'd probably be on the liberal end of things (I think there's a pretty wide range of appropriate public use), but the state of the law is so far out there to me it's jaw dropping.
7.17.2009 2:29am
/:
I brought it up for the benefit of liberals and moderates watching the hearings, to let them know that property rights is not just an issue for "conservatives" or whites.


I have a visceral reaction to that, which I can only phrase this way: if they're so stupid as to really think that (which isn't an indictment of you -- I know many of the Left are), then they deserve to murder themselves with their fascism. But whether you console so-called "liberals" with ego boosters, like Goldberg constantly does in his infamous book, isn't going to make the difference between them dragging me down with them or not.

Which is to say: if you have to qualify it like that, we've lost the argument; head for the hill, because I can hear goose steppers on the railroad track.
7.17.2009 3:12am
C. Elsee (mail):
A baseball player's testimony is relevant to confirming a Sup. Ct nominee? And Ilya Somin gets a "brief comment" after his testimony? This is a travesty...
7.17.2009 5:01am
Christopher A. Elsee (mail):
To quickly follow up, one wonders: why does a scholar receive superficial consideration on an issue so important?
7.17.2009 5:46am
A. Zarkov (mail):
One-Time-Poster:

"I'm wondering if you brought up the NAACP intentionally to Sen. Sessions, given his [infamous] feelings about minorities in general and the NAACP in particular."

I'm unfamiliar with Jeff Sessions. What are his feelings about "minorities in general and the NAACP in particular?" Is this simply your personal impression or is there something in the public record I can look at that prompts your conclusion? I didn't get that impression from listening to him speak during the hearings. If anything he seemed overly subdued and extremely polite, and he did say he voted for the voting rights act.
7.17.2009 7:29am
A. Zarkov (mail):
Ilya Somin:

In my opinion your presentation was suburb. Moreover I thought that the panel discussions in general very good compared to the rest of the hearings, and a welcome relief from the boring, uninformative and mendacious Sotomayor testimony. As pointed out by Ilya Somin and Johnathon Adler, Feinstein and Sotomayor made a number of errors, and this provoked no discussion.
7.17.2009 7:36am
Stephen Goldstein (mail):
Well done. Thanks for the link.

WRT Didden . . . .

To this non-lawyer, what makes the decision so obviously wrong is the idea that Eminent Domain could be used to take a drug store (yes, I understand the store had not yet been built) from one party and give it to another. This is different from Kelo for which one can argue that re-purposing the property would benefit the community, at large.

Situation in Detroit a few years back . . . . In connection with building a new baseball stadium, the City proposed to condemn a number of privately owned parking lots and to sell them to the new statium's owner . . . for parking lots! Thankfully, the public cried out loud enough to scuttle this plan.
7.17.2009 8:00am
Atheist?:
During the oath, you affirmed, with no reservations about "so help me God"...
7.17.2009 8:45am
subpatre (mail):
@Atheistquestionmark: One of the many, many reasons Ilya Somin testified —and you did not— was that Ilya Somin wouldn't halt the hearings over the oath or affirmation.
7.17.2009 10:04am
Malvolio:
@Atheistquestionmark: One of the many, many reasons Ilya Somin testified —and you did not— was that Ilya Somin wouldn't halt the hearings over the oath or affirmation.
That seems like an unprovoked slam. Ilya's criticism of an unstoppable nominee is essentially pro forma, why not make a point over an issue that might actually matter?

That said, I'm an atheist myself, and I have no problem with "so help me God." There isn't a god, but if there were, I would certainly appreciate him helping me to be an honest, forthright person.
7.17.2009 10:49am
Steve H (mail):
There is also a question for me by Senator Jeff Sessions about 15-20 minutes later, where he says the testimony led him to think that the Didden case was worse than he had previously thought.

Hm. Perhaps before you testified Senator Sessions thought that Didden was not a Sotomayor opinion, but rather just a case that was decided on a different ground with no dissent at any level?
7.17.2009 11:45am
JK:

I'm unfamiliar with Jeff Sessions. What are his feelings about "minorities in general and the NAACP in particular?" Is this simply your personal impression or is there something in the public record I can look at that prompts your conclusion? I didn't get that impression from listening to him speak during the hearings. If anything he seemed overly subdued and extremely polite, and he did say he voted for the voting rights act.


I'm pretty sure that he has said things on the record critical of the NAACP, and statements that have at least been perceived as racially insensitive (to avoid the term "racist"), I believe including an admission that he frequently made racial jokes in private.

No, I'm not going to do the Googling for you, but I doubt it would be terribly hard.
7.17.2009 12:00pm
RPT (mail):
AZ:

The general history is as follows. Sessions was rejected for a district judgeship by a Republican-controlled Judiciary Committee in the mid-1980's based on racial comments and activities. He thought the Klan was ok until he found out they used drugs.
7.17.2009 12:17pm
rosetta's stones:
Nicely done, Somin. And yes, I noticed Sessions came back to you later on. Good job.

I found Sessions to be a refreshing example of what I'd expect from a Senator during this process, the little I've seen of it. The MN woman came off solid and dispassionate as well. And Whitehouse is strident, but suitably fact seeking, and looking forward coherently and with purpose, in the best interests of the law (!).

Some of the other guys, well....
7.17.2009 12:17pm
A. Zarkov (mail):
JK:

"I'm pretty sure that he has said things on the record critical of the NAACP, ..."

"No, I'm not going to do the Googling for you, but I doubt it would be terribly hard."

Normally one making an assertion in a comment provides a link to back that up. If nothing else it's a courtesy to the reader. I try to do it myself when commenting. It sounds like you're guessing, and that's ok. I guess myself, but I tell people I'm guessing or suspecting.
7.17.2009 1:24pm
A. Zarkov (mail):
RPT:

"Sessions was rejected for a district judgeship by a Republican-controlled Judiciary Committee in the mid-1980's based on racial comments and activities. He thought the Klan was ok until he found out they used drugs."


I went to Wikipedia and read that. While these accusations certainly have credibility because such attitudes were common among southern politicians, Wikipedia only references a New Republic article which just makes assertions. In any case, at this point, he doesn't seem to have gone beyond a "wise Latina" type of remark.
7.17.2009 1:38pm
JK:
Zakov,

To be clear, I wasn't the poster that made the original assertion, and I basically agree with your take on the proper protocol, but I think adding one's recollections to an already raised issue is a bit different.
7.17.2009 2:54pm
JK:
Zarkov, sorry.
7.17.2009 2:54pm
geokstr (mail):

JK:
I'm pretty sure that he has said things on the record critical of the NAACP, and statements that have at least been perceived as racially insensitive (to avoid the term "racist"), I believe including an admission that he frequently made racial jokes in private.

No, I'm not going to do the Googling for you, but I doubt it would be terribly hard.

These kind of sleazy charges from the left always encourage me to google the facts, and as usual, the smears are based on pretty much nothing - only a few statements taken out of context, then blown out of all proportion to reality and one case he prosecuted where his motivation was imputed to him by the usual suspects, and then trumpeted by Leahy and Kennedy, who is the biggest purveyor of obscene smears in the Senate.

The right didn't abandon Sessions in his 1986 hearings as much as give up after the over-the-top sliming by Leahy and Kennedy. They were apparently just honing their as-yet-unnamed Borking techniques on Sessions so they'd be ready for him too the following year.

One article implied he must be racist since his parents named him after two heroes of the Confederacy. Now there's a really telling example of the lack of logical thought and willingness to make up sh*t it takes to be on the left.

Even after he showed what a treacherous opportunist he was this year, Arlen Specter of all people said last month that he regretted voting against Sessions, because he was NOT a racist. The usual left-wing biased entry for him in Wikipedia fails to mention that his testimony also included pride in prosecuting a case against white racists that they got life in prison for.

Larry Elder, a popular black talk show host in LA for many years and an unapologetic libertarian, stated it just right - a fact to a liberal is like Kryptonite to Superman. And once it's out there, regardless of how preposterous, ridiculous, and downright dishonest it is, it becomes enshrined in left-wing lore forever.

In the year 2525, history books written by liberals (assuming books are still legal) will still call Sessions a racist, and state as fact that Palin was an evolution-denying, special-needs-children-hating, misogynist that had the librarian executed when she refused to ban Catcher in the Rye, before burning down the library and going on her daily baby seal clubbing trek.

When the left gets called on their dishonesty, even on high-minded intellectual blogs like this one, the most common rebuttals are variations of "hey, politics ain't beanbags" and the old get-out-of-the-kitchen canard. It's like they're saying, too bad, we won, you lose. Using such tactics bothers them not one bit.

Well, now that we know about Alinsky too, we're going to learn his tricks and see how they like it.
7.18.2009 2:21pm
A. Zarkov (mail):
Even if Sessions made remarks critical of the NAACP, so what? Is the NAACP beyond criticism? If Sessions made false accusations against the NAACP that stemmed purely from their racial advocacy, that's another story.

I took at brief look at his position papers over at Project Vote Smart, and I got no surprises. As expected he's anti-abortion, and anti illegal immigration. I'm pleased to see that:

Sessions is a leading Senate advocate for increasing America's rise of nuclear power. Nuclear power is the most environmentally friendly component of America's current energy portfolio. Over 20% of US electricity is currently produced by nuclear power plants, but it should be more.
Intelligent and sensible liberals (unfortunately an endangered species) should welcome this rational approach to reducing pollution and promoting domestic sources of energy.

I'm not pleased with his votes on the better treatment of animals, but that's just me. While far from a PETA fan, I'm pretty solidly in favor better treatment of animals. A lot of liberals are pretty poor on this as they think aboriginal tribes should get pass on this.

So at this point, the negative characterizations of Sessions don't rest on any kind of solid foundation. That could change with new information.
7.18.2009 3:37pm

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