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Another Sotomayor Misstatement of Kelo:

In response to questions posed by Republican Senator Charles Grassley, Judge Sotomayor made another misstatement about Kelo v. City of New London:

[T]he issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the — the takings clause of the Constitution that requires the payment of just compensation when something is — is condemned for use by the government, whether the takings clause permitted the state, once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose? And so the holding as I understood it in Kelo was a question addressed to that issue.

The problem with this answer is that Kelo didn't simply hold that the state could "contract with a private developer to effect the public purpose" justifying a taking. It held that the state could actually transfer ownership of the land to a private party and that this was a constitutionally permissible "public use" if done for the purpose of promoting "economic development." This is very different from simply hiring a private contractor to do work on public land, such as hiring a private construction firm to build a publicly owned bridge on government-owned land. Moreover, the "contract" metaphor is misleading, since the new private owners of condemned land in Kelo and other similar cases were not legally required by contract (or anything else) to actually provide any "economic development" - the "public purpose" that supposedly justified the condemnations in the first place (I cover this point in detail in this article, pp. 193-97).

The fact that Kelo allows the transfer of ownership to private parties who have no contractual obligation to provide economic development in exchange makes the case very different from merely "contracting with a private developer to effect the public purpose." If the private interest gets full ownership of the condemned land and does not have to provide any economic development in return, the risks of abuse are far greater than if a private entity is merely hired to do work on publicly owned land that it has a contractual obligation to perform.

RPT (mail):
Will this be part of your testimony? Sort of instant replay review of the "umpire's" calls?
7.14.2009 3:07pm
rosetta's stones:
I dropped in to watch that part, and she basically pwned Grassley. No self respecting sitting judge is gonna be outfoxed by a gnarled up blowhard old senator, I suspect.

She said Didden was decided on statute of limitations, and Kelo wasn't even relevant to the decision... not at all. End of story. Grassley skittered away.

He may have had her on the environmental case, where she rejected the EPA's cost benefit analysis, and was then overturned by the SC, but Grassley seemed too senile to be able to make the point. Advantage sitting judge over senile old senator.

They should just call the vote right now, today, and save themselves the trouble of putting on this show.
7.14.2009 3:10pm
Brian G (mail) (www):
This should not be surprising to anyone. She is a joke and in a just world would never be considered for the Supreme Court.
7.14.2009 3:11pm
Ilya Somin:
She said Didden was decided on statute of limitations, and Kelo wasn't even relevant to the decision... not at all. End of story. Grassley skittered away.

Grassley may have skittered away. But her statement was incorrect, since she did in fact decide the Kelo issue in her opinion, as well. Moreover, the statute of limitations issue was in fact inextricably connected with the Kelo question, a point I discussed in this post.
7.14.2009 3:14pm
Tony Tutins (mail):

She is a joke and in a just world would never be considered for the Supreme Court.

By education and experience Sotomayor's record exceeds Alito's (unless you think that clerkship confers a lifelong lustre). So are you arguing that Alito was a bigger joke?
7.14.2009 3:14pm
Ilya Somin:
Will this be part of your testimony? Sort of instant replay review of the "umpire's" calls?

My testimony will focus primarily on Sotomayor's decisions rather than on her testimony to the committee. Obviously, formal testimony before the Committee is a different kind of activity than blogging.
7.14.2009 3:15pm
Tony Tutins (mail):
Ilya, if Sotomayor gets it wrong, for any reason, cannot the questioner correct her?
7.14.2009 3:16pm
paul lukasiak (mail):
since Sotomayor did not participate on any level in the Kelo decision, you're trying to make an issue of her "misstatements" (if they are misstatements) is pretty ridiculous.
7.14.2009 3:18pm
J.R.L.:
[Playing the role of Sonia Sotomayor at today's hearing will be Harriet Miers.]
7.14.2009 3:25pm
AF:
SS's statement is both literally and substantively accurate. Are you suggesting there are no contracts between the developer and the state?
7.14.2009 3:27pm
ys:

paul lukasiak:
since Sotomayor did not participate on any level in the Kelo decision, you're trying to make an issue of her "misstatements" (if they are misstatements) is pretty ridiculous.

Are you saying that only people who participated in Kelo decision are expected to understand it correctly, while this understanding is not required of the lower court judges who decide cases to which Kelo could be relevant?
7.14.2009 3:30pm
rosetta's stones:
Grassley may have skittered away. But her statement was incorrect, since she did in fact decide the Kelo issue in her opinion, as well. Moreover, the statute of limitations issue was in fact inextricably connected with the Kelo question, a point I discussed in this post.


He did skitter away, and no offense, but your statements on this will mean squat, because if a sitting US senator doesn't say it, it means nothing. Either Grassley can't or he won't say it. Either is very bad.

This Didden case was the one. It was the only point upon which to attack socialist/statist dogma during these hearings, and the miserable old coot senators can't even follow through on that.

Yeah, you discussed Didden SoL in that post, but you're preaching to the converted. Further, somebody's gotta preach to the pagans, and that's these senators' jobs. You'd think a sitting US senator could break down that case into parts and elicit some clear answers, but no.

What a disgusting display. Grassley needs to be gone. What a miserable joke he is.
7.14.2009 3:32pm
paul lukasiak (mail):
Are you saying that only people who participated in Kelo decision are expected to understand it correctly, while this understanding is not required of the lower court judges who decide cases to which Kelo could be relevant?

I'm saying that I don't expect a judicial nominee, when speaking extemporaneously, to be 100 percent correct on all the details of every supreme court cast ever decided.
7.14.2009 3:34pm
AF:
Footnote 4 of Kelo:


While this litigation was pending before the Superior Court, the NLDC announced that it would lease some of the parcels to private developers in exchange for their agreement to develop the land according to the terms of the development plan. Specifically, the NLDC was negotiating a 99-year ground lease with Corcoran Jennison, a developer selected from a group of applicants. The negotiations contemplated a nominal rent of $1 per year, but no agreement had yet been signed. See 268 Conn. 1, 9, 61, 843 A. 2d 500, 509—510, 540 (2004).


Care to retract, Professor Somin?
7.14.2009 3:35pm
SuperSkeptic:
She was deflective and evasive. She'll fit right in
7.14.2009 3:45pm
ys:

I'm saying that I don't expect a judicial nominee, when speaking extemporaneously, to be 100 percent correct on all the details of every supreme court cast ever decided.

What percentage of errors then should we be prepared to ignore? Not to mention, that Kelo has been discussed a little more lately than "every supreme court cast ever decided" (with the possible exception of Roe v. Wade, errors on which I suppose you would also dismiss under your generous extemporaneous errors quota).
7.14.2009 3:50pm
Steve:
Wait, am I seriously supposed to believe the developer in Kelo was under no obligation whatsoever to develop the property in accordance with the development plan? They could have just accepted title to the property from the government and said "whoops, we changed our mind, we're going to build something else altogether" and the government would have had no recourse? That strikes me as rather implausible.
7.14.2009 3:52pm
ShelbyC:

SS's statement is both literally and substantively accurate. Are you suggesting there are no contracts between the developer and the state?


It was neither. The issue was not whether or not the state could contract with a developer to effect a "public purpose" it was whether or not the state could take from A and give to B if it believed that B's ownership would result in greater "economic development".
7.14.2009 4:02pm
Tenrou Ugetsu (mail):
Though it's true that the media loves to blow things out of proportion, in this case Sotomayor mistake does seem pretty significant. Every 1L learns this case in property class their first year, even worst is that this is a pretty famous case to boot. If a supreme court justice can mess this up, it makes me nervous about what Joe Schmoe lawyer can screw up.
7.14.2009 4:06pm
rarango (mail):
IIRC it was Senator Roman Hruska from Nebraska during confirmation for one of President Nixon's who said the mediocrity should be represented on the bench. It appears from Judge Sotomayor's answers that ignorance also is about to be represented.
7.14.2009 4:07pm
ys:

Steve:
Wait, am I seriously supposed to believe the developer in Kelo was under no obligation whatsoever to develop the property in accordance with the development plan? They could have just accepted title to the property from the government and said "whoops, we changed our mind, we're going to build something else altogether" and the government would have had no recourse? That strikes me as rather implausible.

...or not build anything at all and not suffer any consequences. That's exactly what happened at Fort Trumbull. You can check here
7.14.2009 4:18pm
Tony Tutins (mail):

Every 1L learns [Kelo] in property class their first year

"Every" 1L? The first such are sweating over their bar exam prep right now.
7.14.2009 4:54pm
Steve:
...or not build anything at all and not suffer any consequences. That's exactly what happened at Fort Trumbull. You can check here

My question was whether the government would have any legal recourse. If they had legal recourse but decided not to exercise it for whatever reason, that's a different issue. But I have a hard time believing the recipient of the property incurred no legal obligations whatsoever.
7.14.2009 4:59pm
ShelbyC:

But I have a hard time believing the recipient of the property incurred no legal obligations whatsoever.


Legal obligations might make development too risky. What happens if the development plan is no longer profitable? Do you have to keep sinking money into it?
7.14.2009 5:16pm
Steve H (mail):
OMG! She's not as obsessed about the details of Kelo as the Federalist Society!
7.14.2009 7:40pm

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