Could Sotomayor Pass a Constitutional Law Exam?

Judge Sotomayor has botched enough elementary questions about constitutional law to give me serious pause about her judicial competence. She has taken multiple opportunities to demonstrate not only that she does not understand the infamous Kelo holding, but she doesn't even know what a fundamental right is!



Let's pretend that we're all law students, and our professor just said, "Ms. Sotomayor, please tell us about Kelo v. New London." Let's look at her statement before the Senate Judiciary Committee:

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.

Well, no, as Prof. Ilya Somin points out. First of all, the Kelo opinion acknowledged that the property at issue was not blighted. Second, the Supreme Court held 50 years ago in Berman v. Parker that the state may use the takings clause to develop an economically blighted area.

In fact, she doesn't even mention Kelo's major issue, which was whether the government transfer of property ownership from one individual to a private developer in order to foster economic growth constitutes a "public use" under the takings clause.

Now, let's say the professor gave her another crack at it. Here was another statement she made before the committee:

[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, where 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 it in Kelo was a question addressed to that issue.

Not even close, chides Prof. Somin. Whether the state may "contract" a private individual to effectuate a public use (such as a public school or highway) has nothing to do with Kelo. The government utilizes private contractors all the time. The actual issue, stated differently, was whether the state may transfer your grandmother's house to a private developer so he can tear it down and build a parking lot for Pfizer Pharmaceuticals.

This is big deal because Kelo v. New London is an extremely important case—so important that law schools typically teach it twice: first in property law, and again in constitutional law. Virtually any law student can apparently tell you more about Kelo than Judge Sotomayor.

This is especially unfortunate because Judge Sotomayor used Kelo to further deteriorate private property rights. Her Second Circuit panel held in Didden v. Village of Port Chester that, as stated by Prof. Somin, "it was constitutionally permissible for a state to condemn property because the owners had refused [a developer's] demand to pay him $800,000 or give him a 50% stake in their business, threatening to have the property condemned if they did not comply." So, Judge Sotomayor's poor interpretation of Kelo apparently condones state-sponsored extortion. Wonderful.

To make matters worse, Judge Sotomayor doesn't even know what a fundamental right is. Here is her legal definition of a fundamental right: "The term has a very specific legal meaning, which means that [an] amendment of the Constitution [is] incorporated against the states."

No, Your Honor, you have it backwards, reminds Prof. Randy Barnett. Constitutional amendments are incorporated against the states because they protect fundamental rights. We could attribute this to a tongue slip if she didn't keep repeating it.

These are not simple mistakes because eminent domain and the fundamental rights doctrine represent critical areas of constitutional jurisprudence. A Supreme Court nominee should possess a strong command of these topics, yet Judge Sotomayor doesn't even seem to grasp their basic principles. This is very disturbing.

On the bright side, this sends an uplifting message to all the struggling law students out there who couldn't describe a case in class if their legal careers depended on it—you too could be nominated to the Supreme Court!