(Update)Sotomayor — Because the Right is Attacking her, Does not Ipso Facto Make Her the Best Person for the Job
By Mona
Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”
Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo’s home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the “or else” diplomacy of the Obama administration in business matters.
Jurisprudentially, moreover, the sorry Didden episode reveals an important lesson about constitutional law. It is always possible to top one bad decision (Kelo) with another (Didden). This does not auger well for a Sotomayor appointment to the Supreme Court. The president should have done better, and the Senate, Democrats and Republicans alike, should subject this dubious nomination to the intense scrutiny that it deserves.
And Richard Epstein has been one of the harshest critics of conservative justices and the Bush Admin for their extreme notions of Executive power. (One example.) If Sotomayor isn’t at least a vote for reining in that extremism, she may be a net loss for constitutional liberties.
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Update: with most of one of my comments:
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When Kelo came down, even frontpagers at Kos and other liberal sites were appalled that a governmental entity can just take a person’s home for business reasons. I guess many here do not recall how the Michigan Poletown case decimated (or nearly did) an entire Detroit neighborhood in favor of General Motors:
The displaced residents sued the city but the Michigan Supreme Court ruled that economic development was a legitimate use of eminent domain. Public resistance especially from one Catholic parish led to national news attention and the involvement of Ralph Nader and the Gray Panthers. A 29-day sit-in at the Immaculate Conception Church came to an end on July 14, 1981 when police forcibly evicted 20 people from the church.
The decision of the court became a landmark case for “public use†eminent domain matters. The decision was overruled by the Michigan Supreme Court in the 2004 decision County of Wayne v. Hathcock. (Although the 2005 United States Supreme Court decision in the case of Kelo v. City of New London states that the use of eminent domain to promote economic development is constitutional on a federal level, the opinion in Kelo cites the Hathcock decision as an example of how states may choose to impose their own restrictions on the taking of property.)
Comment by mds —
May 26, 2009 @ 8:39 pm
Before getting too far into the weeds on Takings Clause jurisprudence, a few quick points:
(1) It has no particular bearing on Executive Branch powers, relying if anything upon undue deference to state and local electoral bodies. So while she will need as much questioning on the unilateral executive as any nominee not named Diane Wood or Dawn Johnsen, Didden doesn’t actually tell us much about this.
(2) Just because someone was on the side of the angels about Bush administration abuses doesn’t mean they can avoid kneejerk reactions when it’s their royal libertarian ox being gored; to wit,
(2a) trying to make this an executive power issue by invoking ‘all too much like the “or else†diplomacy of the Obama administration in business matters’ is more revealing of Epstein’s opinions than Sotomayor’s, and
(2b) labeling it “this dubious nomination” on the basis of an unsigned panel decision is rhetorical excess that should be beneath Professor Epstein, especially given the extensive leeway he gave Alito’s virtually absolute deference to authority (except presumably in matters involving eminent domain). “Flyspeck,” my ass.
Meanwhile, I’ve tried to come up with a clever Green Hornet pun involving Kelo, but I’ve got nothing.
Comment by Hal —
May 26, 2009 @ 8:50 pm
now we’re into the “BUT SHE ISN’T A LIBERTARIAN” objections… Which, I’m sure will piss off all three remaining libertarians, wrt eminent domain…. But if this is the worst that she has to offer, then geebus… Please for god’s sake learn the meaning of the “the perfect is the enemy of the good”
Comment by joe from Lowell —
May 26, 2009 @ 9:07 pm
Language like this should set off alarm bells about the writer’s perspective and precision. I certainly wouldn’t take such a writer’s description of the facts of a case at face value.
Ah. Hokay.
Anyway, extremely broad deference to the judgement of legislative bodies in takings cases is the law of the land, and has been for more than half a century. By all means, argue against that doctrine, but pointing out that Sotomayor issued rulings that were very broadly deferential to the city in a takings case tells me only that she was a judge who heard a takings case at a level lower than the Supreme Court in the decades after World War Two.
Comment by Jon Hendry —
May 26, 2009 @ 9:41 pm
Hey joe from Lowell, is it feasible to commute from Lowell to Boston (specifically the Longwood Medical Area)?
Plz email me at jonhendry at mac dot com.
Thanks!
Comment by Thoreau —
May 26, 2009 @ 9:53 pm
I don’t know enough about Sotomayor to say if I support the Senate nomination, but if there is a credible case to be made against her I’m 100% certain that the Senate Republicans will find a way to not make it.
Comment by Seward —
May 26, 2009 @ 10:19 pm
90% of the stuff associated with Supreme Court nominations is a kin to Kabuki theatre.
Anyway, I’m not quite sure why one should pay attention to who is nominated.
Comment by KCinDC —
May 26, 2009 @ 10:38 pm
How can you take Epstein’s description of the case seriously? Maybe there was a worthwhile point to make about it, but all he accomplished with that was to make me discount anything he had to say about it.
Comment by John Markley —
May 26, 2009 @ 10:48 pm
Hal,
In modern American English, it means something along the lines of, “Give up your fundamental principles and support someone violently hostile to your ideals in return for a vague promise of marginal improvement in the indeterminate future.”
Comment by Mona —
May 26, 2009 @ 11:26 pm
In modern American English, it means something along the lines of, “Give up your fundamental principles and support someone violently hostile to your ideals in return for a vague promise of marginal improvement in the indeterminate future.â€
Exactly. When Kelo came down, even frontpagers at Kos and other liberal sites were appalled that a governmental entity can just take a person’s home for business reasons. I guess many here do not recall how the Michigan Poletown case decimated (or nearly did) an entire Detroit neighborhood in favor of General Motors:
Comment by mds —
May 27, 2009 @ 9:25 am
Again, what does any of this actually have to do with Article II and the Unilateral Executive?
And why does this provoke Epstein to ring the Cloister Bell, when cavalier strip searches and flouting the plain reading of existing SCOTUS precedent were mere “flyspecks” for Alito?
At least Kelo forced a bunch of state legislatures to do their jobs and better delineate eminent domain powers, rather than having activist federal judges repeatedly make law with no regard for states’ rights. What has Alito’s absolute deference to police power gotten us? A (fortunately dissenting) opinion this week that states should be free to ban damages lawsuits against prison guards.
By all means, question Judge Sotomayor about this, and force her to flesh out her Takings Clause jurisprudence. But put that lower on the list than Executive Branch powers, “wartime” detainee rights, ballooning police powers, etc, etc, etc. And be grateful that at least it’s not Elena Kagan’s turn yet.
All that said, Professor Epstein and I apparently agree that it’s really Diane Wood who belongs on the Supreme Court. But given that Judge Sotomayor is already “far-left,” what does that make Judge Wood?
Comment by joe from Lowell —
May 27, 2009 @ 1:16 pm
What does it have to do with the executive at all? The complaint about the takings doctrines upheld in Kelo has been that they are too deferential to the judgments of legislative bodies (city councils and state legislatures).
Comment by Mona —
May 27, 2009 @ 2:05 pm
mds writes:
And why does this provoke Epstein to ring the Cloister Bell, when cavalier strip searches and flouting the plain reading of existing SCOTUS precedent were mere “flyspecks” for Alito?
Well first, I did not claim eminenet domain and takings jurisprudence had to do with Executive power and Article II. But (a) we do not know what Sotomayor’s views are on the latter, (b) Article II is not the entirety of the Constitution.
Second — and do not mistake me for an Alito fan — but Alito did not approve of strip-searching little girls. Due to the “war on drugs,” that happens with some frequency (since adults have been known to hide product on kids bodies). At issue in the case before Alito was whether the officers who performed a particular search could be civilly sued and lose their qualified immunity when they had been led to believe by the prosecutor who obtained the warrant authorizing the raid on the house that it included authority to strip children. Alito didn’t think the officers should be subject to losing their own money or assets based on a mistake. (As I recall, there was no dispute as to the officers’ genuine belief that they had authority to do the search.)
It is an abomination that because of the WoD, kids are not infrequently strip-searched. But that issue per se was not before Alito.
Comment by Seward —
May 27, 2009 @ 2:38 pm
mds,
Preliminary thoughts…
I guess one response would be that a free society requires robust property rights as a basis for it. Indeed, a strong argument can be made that what is so screwed up with most of the world is a lack of strong property rights. Supposedly the primary benefit of government is that it protects private actors from the vagaries of other private actors, but that doesn’t amount to much if the state is worse due to its greater power to coerce. In other words, a lot of what the state can do, in particular the executive branch, hinges on how inviolable one’s property rights are. So that is one reason to look at what she has done in this area.
Comment by mds —
May 27, 2009 @ 2:52 pm
Which would be true of a great many nominees. And oddly, Epstein’s colleague Geoffrey Stone had no problem extrapolating from Alito’s obvious deference to state power, which provided much firmer ground for worry.
In fact, Alito believed that there was no dispute as to the judge’s genuine belief that they had the authority.
“The magistrate must have understood that the officers, who had drafted the warrant, believed that the warrant, if signed, would give them authorization to carry out a search of the scope specified in the application, viz., a search of ‘all occupants.’ As a result, the magistrate surely would not have signed the warrant without modification if the magistrate had not wished to confer that authority.”
Even though the warrant named only the drug dealer and his house. Clearly, the police were acting in good faith by exceeding the written limits of a warrant, an action secretly foreseen and approved of by the judge at the time he signed off on the warrant. No, there’s no plausible way the police could have been abusing their authority in a drug raid. And with no way around qualified immunity even in the case of an illegal search, the victims would have no further recourse. That is, if bleeding-heart Michael Chertoff or his other colleague had agreed with Alito. Oh well, at least the police weren’t there to force them to sell their house to the city.
Comment by Mona —
May 27, 2009 @ 3:35 pm
mds writes:
I cannot recall where I read it, but it was also the prosecutor on whom the police relied in believing they had a right to search all occupants. And as I said, in the odious war on drugs, searches of children happen all too often. But the case Alito dissented in does not stand for the proposition that he approves of strip-searching little girls. He did not want to bankrupt cops who apparently acted in “good faith” — of the sort this mad war on a substance produces.
None of which, again, is to say I am an Alito fan. But I do object to mischaracterizing his dissent in the “little-girl strip search” case.
Comment by mds —
May 27, 2009 @ 3:54 pm
Well, anyway, there’s nothing to do about Justice Alito and his already-grim SCOTUS record now.
I will reiterate that I remain skeptical of Professor Epstein’s line of attack on Judge Sotomayor. I do accept that this would be a perfectly legitimate case to raise at her confirmation hearing, but “dubious nomination” needs a little bit more of a foundation. And anyway, the hearings will be Senators listening to themselves talk, some shots about “making law” and “empathy,” possible disingenuous invocations of cause celebre of the moment Frank Ricci, and something about abortion from Senator Coburn at the very least. But very little substantive about legal philosophy, because we’ve all decided that’s a no-no for lifetime judicial appointments.
Comment by bartkid —
May 27, 2009 @ 4:28 pm
>Because the Right is Attacking her, Does not Ipso Facto Make Her the Best Person for the Job
Why am I hearing an angelic choir repeatedly chiming the phrase “Chief Justice Hillary”, then?
Comment by Mona —
May 27, 2009 @ 5:03 pm
mds writes:
We are largely in agreement — the confirmation process will be a dog and pony show, and Sotomayor will almost certainly refuse to answer in any but the broadest terms what her views are on Article II powers vested in the Executive — “Such cases are likely to come up before the Court, so respectfully Senator Lump I cannot specifically address that question.”
And maybe Epstein could have used the words “less than ideal” rather than “dubious,” depending on what Diane Woods’ jurisprudence is on takings/ED, if indeed she has any evident in either case law or articles.
Comment by fledermaus —
May 27, 2009 @ 5:16 pm
But the case Alito dissented in does not stand for the proposition that he approves of strip-searching little girls. He did not want to bankrupt cops who apparently acted in “good faithâ€
I can’t tell you the number of times I’ve handled cases where cops told the court that they actually didn’t have a good faith reason to search someone (/snark). Look it up, there is no good faith exception to the warrant requirement. It looks like strict construction for female workers getting shafted on pay, empathy for a bunch of facist cops drunk on their own power and delusions.
Comment by Mona —
May 27, 2009 @ 5:23 pm
No there is not — not for criminal prosecution purposes and the exclusionary rule. But the case under discussion was a civil suit in which the issue was whether the officers deserved to be personally liable for their error, or were covered by qualified immunity.
Cops can be dim bulbs, and if the prosecutor told them the warrant included searching everyone in the house, I don’t think the cops should be punished,lose their homes & etc. Children should not be strip-searched. But they simply are, thanks to the war on (people who use and sell some) drugs.
That is not the fault of any particular cop.
Comment by Barry —
May 27, 2009 @ 5:26 pm
As others have pointed out (here and elsewhere), the right really, really demands ‘empathy’ in its judges. They just want empathy for different things – those with power and money.
Comment by Mona —
May 27, 2009 @ 5:35 pm
Barry sez:
Yes. I agree the “empathy-issue” hand-wringing on the right is BS on stilts. Judges and justices are often called upon to weigh competing values (constitutional and otherwise) and make discretionary decisions all the time — a diversity of background on the High Court makes sure no one perspective is contributing to those factors.
Comment by Omooex —
June 1, 2009 @ 5:52 pm
I agree with some others here, that I just am not versed well enough on the law at this level. However, that’s something I share with most everyone I know, and some of those people have advanced degrees and are not just a flatland ignoramus like me. What I would need to make sense of this ruling is a comparison to how other judges in similar contexts ruled, and what their reasoning was. It seems like the court, and Sotomayor ruled on precedent, and I thought that was the whole point.
In any case, I’ve never been to your blog, but I do appreciate you bringing up these issues. The discourse until now has been framed by the right and a compliant media–is she dumb? is it ok that she’s Puerto Rican? is she racist? is she an affirmative action hire?
My take on that has been to expose all of those issues as meritless arguments, but not necessarily to agree that I’m fine with her jurisprudence. When we’ve gotten past all this shit, then maybe we can have the conversation that you’re trying to bring up. I don’t think the fault for the current discourse falls anywhere else but on the right–the accusations have been taken seriously by the media, its our job to show that this isn’t a valid avenue for discussion.