Friday, June 5, 2009

If you thought Judge Sonia Sotomayor’s controversial stances on racial issues were problematic, you should get a gander at the Supreme Court nominee’s apparent hostility to property rights.

Judge Sotomayor served as the senior judge on one 2006 case, Didden v. Village of Port Chester, which respected University of Chicago law professor Richard Epstein described as “about as naked an abuse of government power as could be imagined.” Her judicial panel’s ruling might be the worst violation of property rights ever approved by a federal appeals court. It is part of a pattern of Judge Sotomayor’s pro-government rulings that run roughshod over the most basic of private property rights.

In the Didden ruling, as in the Supreme Court’s infamous Kelo v. New London decision, the government used its constitutionally limited power of “eminent domain” to force one private owner to turn over land (for a fee) to give it to a private developer. Yet the Didden case was even worse than the Kelo one. When the town of New London, Conn., took Susette Kelo’s home - a rank injustice - the town at least did so after public hearings. The Village of Port Chester, N.Y., took Bart Didden’s land without a public hearing.

New London took the land around Ms. Kelo’s house in order to change it from residential use to a commercial use that purportedly was for the public good. Port Chester, to the contrary, did not claim to change the land use for the public good. Instead, it merely gave the land to a private developer who wanted to use it for the same purpose, a pharmacy, as the original owners. Instead of a CVS, the new owner used it for a Walgreens.

In essence, wrote Mr. Epstein and George Mason University law professor Ilya Somin, the taking of private property amounted to “out-and-out extortion” with government support. Yet Judge Sotomayor’s panel not only ruled against Mr. Didden’s property rights, but did so with a bare, six-paragraph order - as Mr. Somin described it, “without serious examination of the legal issues to any significant degree.”

It’s a mystery how the judge could square this case with the Constitution’s requirement that private property can be taken only for “public use,” or with its requirement that “no state” shall pass any “law impairing the obligation of contracts.”

Judge Sotomayor’s record includes several other cases in which property rights got short shrift. Two are illustrative. In Brody v. Village of Port Chester, she joined a ruling in favor of the original owner - but on procedural grounds alone, while refusing to order the remedy of returning the property to him. The panel added a gratuitous paragraph saying that government’s eminent-domain powers are quite “broad.” In the case of In re St. Johnsbury Trucking Co., the judge admitted that a regulation wiped out an owner’s property value but approved it anyway without any compensation.

These cases are extremely worrisome. Judge Sotomayor’s apparent bias against private property does not recommend her nomination for the nation’s highest court.

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