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.