Sotomayor's Kelo Mistake

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George Mason University law professor (and Reason contributor) Ilya Somin catches Sonia Sotomayor misstating a central fact about the Supreme Court's eminent domain decision in Kelo v. City of New London during her confirmation hearings today:

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"…

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.

Whoops. As Somin notes, "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."

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32 responses to “Sotomayor's Kelo Mistake

  1. She’s biased and a dufus.

  2. And as a decision where Justice Souter was in a five member majority, Kelo is one of the more important cases to consider for her nominations. (Along with a host of civil liberties questions with the formalists five member majority, Scalia, Thomas, Ginsburg, Souter, Stevens.)

  3. Bingo!

    This is the post, the single solitary post that’s going to lead to millions of Americans turning against her and contacting their representatives! Damon Root and Ilya Somin are our new national heroes! Single-handedly they have stared BHO’s agenda in the face and come back a winner!!!

    Congratulations to you both. You’re winners!

  4. What’s the big deal, it’s just some old supreme court case.

  5. What this tells me is that she’s stupid. That’s actually a good thing, because it means that if she gets on the Court she’ll be much less effective and do much less damage than a smart Obama nominee would.

  6. Does anyone believe that anyone Obama nominates for this position would be good on Kelo? Anyone?

    * Crickets chirping. *

    The reality is that Obama is going to get SOMEONE who is very liberal, and not libertarian at all, on the court. He’s got 60 D-ish votes in the Senate, plus or minus a few.

    Unless some real juicy dirt gets dug up, Sotomayor will be confirmed.

    Would be nice to see him get smacked down on one or two nominees first, though.

  7. Lonewacko, your personal hygiene leaves much to be desired.

  8. She’s biased and a dufus.

    And almost certainly a lying sack of crap to boot.

    She claimed earlier today that when a Supreme Court decision gets made that it is “settled law”.

    I don’t believe for a second that she truly believes that as a universal principle.

  9. She claimed earlier today that when a Supreme Court decision gets made that it is “settled law”.

    Questions are only settled when the Left gets what it wants. Otherwise, the struggle continues.

  10. Does anyone believe that anyone Obama nominates for this position would be good on Kelo? Anyone?

    Kelo, probably not, though that fact that Senator Herb Kohl expressed some Kelo outrage when asking Sotomayor about it means that it is possible that a liberal judge could have a different position.

    Apprendi, Ring, Blakely v. Washington, Arizona v. Gant, Melendez-Diaz, Kyllo v. United States and some other formalist vs. pragmatist cases might would be better ones to ask her about, though.

  11. Kelo is fundamentally really, really unpopular. Even among Democrats. It’s so unpopular that Howard Dean gave a speech blaming the decision on the “right-wing Supreme Court.” Republicans will bang on about it, because it is their best issue. Still, she won’t answer anything about it.

    The other cases I mentioned there may be much more uncertainty as to how she’ll rule, but I don’t think that people are as interested in them, nor is opinion as one-sided as Kelo.

    The Republicans have called Ilya Somin to testify, primarily about Didden v. Port Chester but also about other cases.

  12. When Nixon nominated Harrold Carswell to the supreme court, NE Sen Roman Hruska said

    “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”

    I think that comment applies here.

  13. She isn’t as wise as she thinks she is.

    No surprise she was nominated by Obama who isn’t as wise as he thinks he is. When are those test scores going to be released, Mr. Affirmative Action President?

  14. Let’s see the whole quote, why don’t we?

    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.

    I could parse that quote all day and wouldn’t be able to defend it. God, that was dumb.

  15. 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.

    Socialist!

    but the question in Kelo was a complicated one about what constituted public use

    The complicated part is shoving it down the public’s throat.

    OK I have got to get back to work. Goodbye again! For real this time.

  16. She is not exactly covering herself in glory at these hearings.

    She gets Kelo wrong.

    She admits she doesn’t know what the Supreme Court has said about incorporation of the Bill of Rights.

    She gets incorporation of fundamental rights backwards, saying that a right is fundamental if its incorporated, not that a right is incorporated because its fundamental.

    She is, in short, what her detractors have been saying all along – a classic affirmative action hire. Someone who is barely qualified, but got the job because she can tick off the right boxes on the HR form.

  17. She graduated Princeton Summa Cum Laude and was a member of Phi Betta Kappa. She’s clearly not stupid, which doesn’t mean she doesn’t make mistakes or get things wrong.

    It seems there is a tendency here to call people idiots when you don’t agree with them.

    Why not argue the points, rather than fling epithets?

  18. Shut up, droogy. You’re an idiot.

  19. SotoMier is the numb chuck.

  20. Like I should talk, dropping the “s.”

    SotoMiers. But unlike Bush and Harriet, Sotomayor will be embarrassing Obama for the rest of her life.

  21. It seems there is a tendency here to call people idiots when you don’t agree with them.

    How about “evil”? Is that better?

  22. droogy – if you were nominated to the supreme court, not only should you be pretty smart, but you should also know how to prepare yourself for a barrage of questions about your role in lower courts, your knowledge of the rulings of the highest court, etc, etc. The fact that she has been making as many mistakes as she has, is telling.

    RC may be correct. Just because she went to Princeton and earned what she did doesn’t mean she didn’t get a little bit of help by affirmative action, which skews her actual abilities. You know, something that people take AA to task for…

  23. I notice that she didn’t admit that she fucked up big time in her ruling on the Didden case. Frankly, I have to wonder if she was in line for a cut of Wasser’s extortion proceeds.

    -jcr

  24. What bothers me most about Sotomayor’s nomination is that she’s going to take up a space that could be far better used by someone like Alex Kozinski.

    -jcr

  25. Kelo is fundamentally really, really unpopular.

    Yes, state participation in a blatant theft can still get few people upset, even in these times. Kelo is the biggest supreme court fuck-up since Korematsu.

    -jcr

  26. She graduated Princeton Summa Cum Laude and was a member of Phi Betta Kappa. She’s clearly not stupid, which doesn’t mean she doesn’t make mistakes or get things wrong.

    I knew a woman at college who went on to Harvard Law School and the Harvard Law Reviwe. She may have been able to write exam papers that got her good grades, but she was in fact as dumb as a stick.

  27. I don’t think Soto is dumb, but I think she is not nearly as smart as she thinks she is. BTW Chris Matthews called Barack “57 states” Obama a genius the other day.

  28. 671st Quatrain says;
    “THERE COMETH A DARKEN ROBBED LADY
    FROM THE LAND OF THE AMERICAS
    SHE CARRETH WITH HER LETTERS OF SCHOLAR
    BUT HER VISION IS SUBJECT
    AS ONE OF SCORN
    BEWARE THE JUSTICE RENDERED ‘NEATH THE EAGLE
    FOR IT FLIETH NOT STRAIGHT
    FOR THOSE NOT OF WEALTH
    ON THE TIME OF HER ARRIVAL
    SHE WILL BE BUT TWO OF NINE
    SIGNALITH A TIME OF GRAVE DESPAIR
    READY YEE HENCEFORTH
    FOR SHE BRINGS ‘UPON A PLAGUE
    RENDERING THE EAGLE TO THE NEST
    TRIBULATIONS ROUGHT BY CAUDA
    WITHIN THE CLOSED TEMPLE THE LIGHTNING WILL ENTER
    HER CITIZENS OF TRUE HEART INJURED
    THE COMBANTANTS TEAR NOT AT THE WALLS
    BUT UPON THE ELEVATED DECLARATION
    FOR IT BE A

  29. Its no surprise that she got Kelo wrong. If she knew the details she might have actually gotten Didden right. Didden was even worse than Kelo. The Didden owners wanted to put up a CVS. They refused to give the appointed developer 50% of the business and the very next day the property was condemned. The developer then put up a Walgreens on that very lot!
    This is not a joke people. It is just wrong, both morally and legally.

  30. Sotomayor is very stupid–is very racist–who cares that she is hispanic? We don’t have to elevate someone to the Supreme Court to equalize white males and brown latino women. We are very tired of trying to equalize these affirmative actionthieves.

  31. Maybe he should try and find a surgeom general that doesn’t weigh 300 lbs

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