Oh, Just Great

Richard Epstein on Sotomayor:

Here is one straw in the wind that does not bode well for a Sotomayor appointment. 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.

I covered the Didden case back in 2006, where I called it "the worst government abuse I have seen lately," an abuse that has since been Okay-ed by Sotomayor.

Update: I guess given his actions in Chrysler, Obama was happy to nominate a Supreme Court justice who gives a legal pass to outright blackmail.

  • morganovich

    she's a horror. this woman has absolutely no concept of "strict construction". she is, as obama promised, outcomes based and "empathetic".

    other notable quotes:

    “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life"

    that, and have a look at the ricci vs. destefano decision.

    her opinion on it has so little to do with law and so much to do with "social engineering" as to beggar belief.

    hopefully, this will be overturned by SCOTUS who heard arguments this year.

  • Methinks

    "...more often than not reach a better conclusion than a white male who hasn’t lived that life”

    Oh, God. Those stupid white males who scribbled the dumb and disposable constitution! She'll show them how it's supposed to be done.

    The Obamessiah is not in office six months and already we're living a nightmare. Chrysler was a complete disaster. Now this woman who will continue to interpret the law as per Our Dear Leader's wishes. I'm afraid to ask what's next.

  • m arkm

    Obama nominated someone who understands who to be "empathetic" towards - corrupt officials!

  • Prof Frink

    Elections have consequences. This is why I stopped voting Libertarian, better to vote for the lesser of two evils than waste my vote staying true to priciple.

  • Prof Frink

    Elections have consequences. This is why I stopped voting Libertarian, better to vote for the lesser of two evils than waste my vote staying true to principle.

  • seanooski

    Sorry, Prof, but I'll bet you can't name one single libertarian ideal that McLame supports. Voting for the lesser evil is still voting for evil. The Republicrats sold us all out a long time ago. Wake the fuck up.

  • morganovich

    no disagreement that the republicans have utterly sold their credibility down the river, but at least we'd have a veto now that would be derailing pelosi and reid. given that they were going to control congress, sometimes gridlock is the best you can hope for.

  • Prof Frink

    seanooski, would McCain have proposed a budget with a projected $1.8 trillion deficit? Would he have doubled the debt in 8 years? Would he be foisting socialized medicine on us? Would he be undermining our prosperity to force a "green" revolution? While the Republicans might be a slow slide in the wrong direction, the Democrats -- and especially Obama -- are Niagra Falls.