Posted by Ilya Somin:
Sotomayor's Misstatement of Kelo:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247594760
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
[1]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
[2]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. As Stevens notes, 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
[3]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.
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 [4]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
[5]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.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071401250_5.html
2. http://www.law.cornell.edu/supct/html/04-108.ZO.html
3. http://www.law.gmu.edu/assets/homepages/isomin/files/LegalTimes_Blight.pdf
4. http://ssrn.com/abstract=874865
5. http://ssrn.com/abstract=1247854
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