Sonia Sotomayor and Eminent Domain Abuse

As Radley Balko recently noted, University of Chicago law professor Richard Epstein had some very critical things to say about Supreme Court nominee Judge Sonia Sotomayor's role in Didden v. Village of Port Chester, the 2006 decision where the 2nd Circuit upheld an eminent domain taking that "involved about as naked an abuse of government power as could be imagined." (For the full, infuriating story of the case, see Radley Balko's "Official Extortion" from our April 2007 issue.)

In today's New York Times, Adam Liptak reports that Didden is very likely to come up during Sotomayor's confirmation hearings next month:

Bart Didden, the property owner on the losing side of that decision, Didden v. Village of Port Chester, said in an interview that he had been contacted by aides to Republicans on the Senate Judiciary Committee who seemed eager to explore Judge Sotomayor's views on property rights.

As Liptak notes, both John Roberts and Samuel Alito "broke with protocal and perhaps prudence at their confirmation hearings" by raising doubts about the Supreme Court's controversial 2005 eminent domain ruling in Kelo v. City of New London. It will certainly be interesting to hear what—if anything—Sotomayor has to say about eminent domain and the Takings Clause.

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  • Jordan||

    Compassion indeed. Let's take a look at the scoreboard:

    Hope: 329*
    Change: 0

    Can we give George W. Bush a 3rd term? Yes we can!

    *Number pulled out of ass.

  • ||

    I'll say this again: Sotomayor doesn't seem that bad from a libertarian perspective, at least in comparison to others that Obama might nominate. If the GOP manages to scuttle her, who does he nominate next? Will they be worse from a libertarian point of view?

  • Charles Hueter||

    From the Liptak article:

    But it is a "basic proposition," Judge Roberts added, that "government can't take property from A and give it to B."

    A basic proposition that is violated with an astounding regularity.

  • Gimlet||

    I think SoSo should be on the court because she is so fucking fat and fat people are under represented in the Supreme Court.

    When all of these municiple food-bans finally work their way to the Supreme Court, she'll be there to strike them down.

    Fighting for our rights,
    In her magic tights.

  • BakedPenguin||

    Episiarch - what is she good on? I really haven't heard too many positive things about her.

  • creech||

    She'd have to attend the hearings accompanied by Bill Ayres, Rev. Wright, Chavez and bin Laden to not be confirmed. And even then it would be a toss-up.

  • Elemenope||

    what is she good on? I really haven't heard too many positive things about her.

    She's pretty good on free speech. On *some* police and state powers (but not others).

    It's fairly hard to tell with her because he's the model of judicial restraint; hews very closely to the letter of the statute and stare decisis...you know, all those qualities that conservatives say they love. Ah well.

  • ||

    AHA! Alito, Scalito, Roberts, and the blaek token marching is lockstep!

    No ideology as a work-in-progress there!

  • ||

    oh - and throw me some ahi tuna on there and grill me a fucking St. Peter Catholic Salad...

    ummm good! Fuck those pagans!

  • BakedPenguin||

    LMNOP - considering the Biden speech, I'm surprised to hear that. Although I shouldn't be shocked to hear he got something wrong.

  • Elemenope||

    Um, shrike, American Catholics are about as viewpoint diverse a group as one can think of. They don't goosestep to the words of the pontiff, y'know.

  • Elemenope||

    LMNOP - considering the Biden speech, I'm surprised to hear that. Although I shouldn't be shocked to hear he got something wrong.

    I read that as Biden calming down the police so they wouldn't kick up too much of a fuss, and nothing deeper. I'm not, for example, crazy about the amount of latitude she tends to give police officers in the execution of their duties, but on the other hand she seems very strictly in favor of robust and rigorous due process.

  • ||

    what is she good on? I really haven't heard too many positive things about her.

    LMNOP covered it, but it's not so much what she's good on, but that she's not super bad on a bunch of stuff. I can't expect more out of an Obama nominee (and I can certainly expect less), so I say go with this one.

  • ||

    Um, shrike, American Catholics are about as viewpoint diverse a group as one can think of. They don't goosestep to the words of the pontiff, y'know.

    I tend to agree.

    Its the four Catholic juice swiller assholes on the SCOTUS that worry me.

  • Elemenope||

    Its the four Catholic juice swiller assholes on the SCOTUS that worry me.

    Yeah, but shrike, what I'm not getting is the relevance of their being Catholic to any complaint you may have about them. I mean, would it be different if they were Baptists or Unitarians? Would that preclude them from believing and acting as they do currently?

  • ||

    It's fairly hard to tell with her because he's the model of judicial restraint; hews very closely to the letter of the statute and stare decisis...you know, all those qualities that conservatives say they love.

    I think you're confusing stare decisis with strict constructionism. It's pretty laughable to say conservatives love stare decisis when there's a whole laundry list of SCOTUS decisions they're itching to see overturned (Roe, McConnell, Wickard...)

  • Xeones||

    shrike! Meds! We've discussed this! Take your goddamn meds EVERY DAY or they don't work.

  • ||

    shrike, imagine how that would sound if you were talking about Jews. Your President would be ashamed of you, assuming he wasn't lying through his teeth on his recent trip.

  • Elemenope||

    I think you're confusing stare decisis with strict constructionism. It's pretty laughable to say conservatives love stare decisis when there's a whole laundry list of SCOTUS decisions they're itching to see overturned (Roe, McConnell, Wickard...)

    I don't know many conservatives who dislike Wickard. *Libertarians*, certainly, but not conservatives generally. They fucking *love* a strong, meddling state, so long as they are doing the meddling.

    And by-and-large they do like stare decisis as a component of responsible jurisprudence. It is true that like everyone else they abandon their principles when they are inconvenient, but I'm talking primarily about their rhetoric. Even Roberts harped on during his confirmation about Roe being a "superprecedent" or some shit.

  • Elemenope||

    Your President would be ashamed of you

    That "your president" shit was tiresome when it was about Bush the lesser. It doesn't get any less tired simply because of a new target. He's your president too, and my condolences on that.

  • ||

    Remember, people, his name isn't "shrike", it's "shriek", but he just spells it wrong. Probably dyslexic.

  • Paul||

    If the GOP manages to scuttle her, who does he nominate next? Will they be worse from a libertarian point of view?

    That can always be the worry. Obama could nominate Che Guevara, and when scuttled, he might reach farther left.

  • ||

    Yeah, but shrike, what I'm not getting is the relevance of their being Catholic to any complaint you may have about them.


    Catholics want to overturn 'Griswold' which granted women the right to take birth control pills to avoid pregnancy - aka 'the right to privacy' aka - thus the theocrats wish to rule over a womans baby bits and force women into their Muslamo-Christ-Fag theocracy.

    Look, I wish I could chocolate-dip it for you Christ-fags... just can't today!

  • ||

    I have no respect for Christ-Fags... is that a big deal here?

  • ||


    Remember, people, his name isn't "shrike", it's "shriek", but he just spells it wrong. Probably dyslexic.



    But you suck on the GOP teat.. so why should I care about your opine?

  • Jordan||

    I have no respect for Christ-Fags... is that a big deal here?



    Yeah, we generally frown upon bigoted assholes here.

  • ||

    But you suck on the GOP teat.

    All day long, buddy. All day long.

    so why should I care about your opine?

    You really shouldn't. But if you just changed your handle to "shriek", it would be so much more accurate. Isn't that something?

  • ||

    We know what "conservative" means - its a goddamn synonym for 'Theocracy'.

    Lets cut the shit out and move toward LIBERTY!!!!!!!!!!!

  • Elemenope||

    Look, I wish I could chocolate-dip it for you Christ-fags... just can't today!

    Look, I deplore the erosion of reproductive rights, and concede that it is primarily driven by religious factors. However, calling people "Christ-fags" makes the argument about their beliefs rather than about policy and also shuts off any possible avenue for persuasion, which is especially foolish considering that there are many many religious people in the US who believe just as you do about reproductive rights but don't generally like being called rude names on account of what church they happen to attend.

  • ||

    Yeah, we generally frown upon bigoted assholes here.

    I respect your right to dissent.

    Please respect my right to call out redneck assholes like Rush the Redeneck and Glenn the Christ-Faggot.. Kapicsh - motherfucker?



    Because - goddamn - I would hate forshitty goddamn little Sean =loving fluffer ass shit bait to fall in........ oh fuck noo..........



    you piece of shit - never hate our Constitution for Christ-faggotry!

    Kapeisch -asshole?

  • ||


    Look, I deplore the erosion of reproductive rights, and concede that it is primarily driven by religious factors. However, calling people "Christ-fags" makes the argument about their beliefs rather than about policy and also shuts off any possible avenue for persuasion, which is especially foolish considering that there are many many religious people in the US who believe just as you do about reproductive rights but don't generally like being called rude names on account of what church they happen to attend.


    Fuck them. I am a radical for liberty.

  • Elemenope||

    Fuck them. I am a radical for liberty.

    They have another name for radicals without allies. I'm sure it'll come to me sooner or later.

  • ||

    It's "capisce", shriek. Maybe you are learning disabled.

    By the way, you are in excellent form today. Meth? Coke? Vodka and Red Bull? Come on, you can tell us.

  • The Angry Optimist||

    holy god, shrike really is in SuperAwesome Mode today.


    Because - goddamn - I would hate forshitty goddamn little Sean =loving fluffer ass shit bait to fall in........ oh fuck noo..........



    Someone make sure that you archive this thread somewhere. I haven't seen a good breakdown since...Obama...

  • Jordan||

    The only thing worse than an angry bigot is an incoherent angry bigot.

  • ||

    By the way, you are in excellent form today. Meth? Coke? Vodka and Red Bull? Come on, you can tell us.

    I wish.



    See, unlike others, I admit to my foibles,,

    You two "epis" are off message Alhuogh I like you both

  • The Angry Optimist||

    grins

    y'know, shrike, the other day Ann Coulter was telling me how the CRA is responsible for the current economic downturn. What do you think about that?

  • BakedPenguin||

    I have no respect for Christ-Fags...



    You know, I don't really care for religion, but I've learned to shut the hell up about it unless I'm talking to people I know already share my views. For one thing, insulting people just pisses them off. See Lonewacko or Underzog for a good example of people who undermine their arguments by being complete assholes. For another thing, there are Christians who are thoughtful, intelligent people. Dismissing all their ideas because you don't agree with their ontology / metaphysics is foolish.

  • ||

    Please respect my right to call out redneck assholes like Rush the Redeneck and Glenn the Christ-Faggot.. Kapicsh - motherfucker?

    You have that right. However, you do not have the right to use reason's server space to do this, and you certainly don't have the right not to be pointed at, mocked, and deemed a bigot.

  • ||

    Even Roberts harped on during his confirmation about Roe being a "superprecedent" or some shit.

    That might have had something to do with his desire to be confirmed. It's certainly not a widespread conservative belief.

  • Elemenope||

    However, you do not have the right to use reason's server space to do this, and you certainly don't have the right not to be pointed at, mocked, and deemed a bigot.

    Everyone always forgets that half.

    That might have had something to do with his desire to be confirmed. It's certainly not a widespread conservative belief.

    We'll see. I should point out, no conservatives on the committee raised a fuss when he said it.

  • ||

    I only ask from the right-wing,,, don't bring your superstition into this debate!

    What is wrong with that?

  • MNG||

    I don't like eminent domain run amok. Liberals shouldn't. The same principles that should tell you that its goofy to empower the government side in, say, trials or interrogations, should tell you to not give the government such a broad hand to take property from citizens.

    Saying that, I'm just not sure its unreasonable to read the Takings Clause the way its read. It seems to say "there is to be no taking of private property for public uses unless just compensation is paid." It seems to have as its obvious purpose making sure compensation is paid when takings occur. Any requirement to strictly police the "public-ness" of the taking is certainly not as obvious...

    Something doesn't have to be a Constitutional issue all the time. After all, the Founders were not libertarians, or liberals or conservatives in the modern sense, and so that document ain't going to give you everything you could want...Statutes and maybe amendments should be used to fight this...

  • MNG||

    shrike
    Someone was bringing religion into the eminent domain debate???

  • ||

    I respect Christ-Fags--- seriously. Some of the best pussy I have ever scored has come from this charade....

    Selah... motherfuckers!

  • ||

    Someone was bringing religion into the eminent domain debate???

    Confused?

  • ||

    Selah... motherfuckers!



    lol! At least you're a funny bigot.

  • Elemenope||

    I only ask from the right-wing, don't bring your superstition into this debate! What is wrong with that?

    Well, for one, it's not just their superstition. It's pretty popular all around, by most accounts. That counts for something, I think.

  • Elemenope||

    Saying that, I'm just not sure its unreasonable to read the Takings Clause the way its read. It seems to say "there is to be no taking of private property for public uses unless just compensation is paid." It seems to have as its obvious purpose making sure compensation is paid when takings occur. Any requirement to strictly police the "public-ness" of the taking is certainly not as obvious...

    Actually, this is one of those areas where some sort of originalism/textualism has strength; eminent domain wasn't exactly a new idea in 1787, and the takings clause was written with that context of understanding clearly in mind. I think we can say with decent confidence that the power was never understood to extend to takings for private or semi-private use.

  • Rich||

    I note a wonderful consistency among admission of being an AA baby, the embrace of "takings", and non-expression of analysis in one's "decision".

  • ||

    MNG,

    By that reading, the 4th tacitly allows private property to be taken for private use without any compensation. It's pretty clear, as Elemnope said above, that taking private property for private use was considered such a turpitudinous notion that it didn't even bear mentioning.

    I mean, the reading you're using would agree with Alberto Gonzales, that the Constitution failing to say that we have a right of habeas corpus (it only specifies conditions under which it can be taken away) means we don't have such a right.

  • ||

    Without considering the mention of "public use" to be a defining parameter, the Takings Clause ends up meaning the government can take anything from you for any reason, even giving it to someone else for any reason as long as a court determined price is "paid" for it to the offended property.

    Does any rational view of the Founder's beliefs support the notion that they felt arbitrary seizure of private property to be just fine and dandy?

    The real problem with the Founders is that they couldn't warp think thinking enough to anticipate the perversity of the modern authoritarian state. Why does the 2nd talk about militias? Because they couldn't conceive of a government they set-up seizing personal weapons; they confined themselves to the more reasonable fear that the Federal government would try and disarm the "armies" of the states. Why does the Takings Clause talk about "public use?" Because they never imagined the Federal government they had set-up would try and shuffle private property around like the British Kings did.

    It's a stupid as the nimrods that think on-line media isn't covered by the 1st Amendment.

  • ||

    SugarFree,

    To be fair, they probably didn't envision the Bill of Rights being enforced against state governments either. Since very few of the private-to-private ED transfers are made by the federal government, that kind of negates the idea of looking at it from the Founders' viewpoint.

  • ||

    Tulpa,

    But I wonder if any of those states have a screwy takings law that can be credibly read to allow for the state government to parcel out property willy-nilly.

    But, at the end of this long day, I cannot get worked up over states rights when it's the state striving to trim back the already sparse tree of rights the feds allow us.* A federal bill of rights--a minimum package of rights for all levels of American government--is a reasonable check on the tyranny of the majority at the state level.

    *To Those Concerned: Yes, I know the government doesn't grant us rights, but rather we tell it what of our natural rights it can take away. But doesn't the way I have constructed it hew closer to the facts on the grounds?


    Anyway, go get some sleep ya bums.

  • MNG||

    "By that reading, the 4th tacitly allows private property to be taken for private use without any compensation."

    No, the 5th allows that. Look at it, it does. As long as due process is followed...

    "Does any rational view of the Founder's beliefs support the notion that they felt arbitrary seizure of private property to be just fine and dandy?"

    But of course these governments say their seizures are not "arbitrary" at all.

  • robc||

    MNG,

    The due process clause in the 5th requires the government to respect the 4th amendment rights. So, there is no due process that can be followed that allows that taking.

  • ||

    No, the 5th allows that. Look at it, it does. As long as due process is followed...

    The federal government can also kill you as long as due process is followed. So by your argument, if the county water authority decides they want a citizen dead, they have the authority to kill him.

  • ||

    More to the point: I don't think you understand what "due process" means in constitutional law, MNG. I'm not a lawyer either but I know it's understood to refer to criminal prosecution.

  • ||

    Fuck them. I am a radical for liberty.

    I don't think that word means what you think it means, shrike.

  • robc||

    Tulpa,

    Actually, it isnt just criminal prosecution. It applies to any government action - "due process" requires them to follow the other applicable laws and to respect the rights of the citizen involved.

    So, in the case of seizing property under the 5th, due process requires following the 4th.

    Due process is one of the basic building blocks of rule of law. It requires the government to follow the law.

    It doesnt mean "create a process to do it" which is what MNG's post seems to imply he thinks it means.

  • MikeL||

    @Jordan

    I thought that number smelled funny.

  • ReadThe5th||

    "Someone was bringing religion into the eminent domain debate???"

    Of course. "Thou shalt not steal" establishes the concept of private ownership. All rights (USA civil rights) are given by God when you're born, not by government. God and government are in conflict.

    Due Process requires you be convicted of something before your property is seized. Govt can't keep the property but must sell it at auction.

    Eminent domain is when govt seizes and keeps the property for public to use. If the seized property is to be sold, due process must be used.

    Founding fathers did talk about officials redefining words and doing the opposite of what's allowed in law by saying you're strictly following the law. The revolution edefined eminent domain from public good to public use.

    I'm taking your house to give to rich campaign donor Joe Smith for his exclusive private use, which is a public use. See how easy that is when govt schools have not taught founding principles for generations.

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