The Sotomayor nomination - the law is what the heart says

La Jueza Empática A "wise Latina woman" who doesn't always side with victims of government power. By JAMES TARANTO...Judge Sonia Sotomayor of the Second U.S. Circuit Court of Appeals will be the next associate justice of the U.S. Supreme Court,...President Obama has said he wanted justices with "empathy," although in fairness he has also insisted that knowledge of the law would not disqualify a prospective nominee. As National Journal's Stuart Taylor notes, in a 2001 speech Sotomayor described her judicial philosophy in this way: "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."...she's going to be writing a lot of dissents...Without the support of at least two white males, then, the best she can hope for is to be on the losing end of a 6-3 decision.What exactly does "empathy" mean in the context of appellate judging, anyway? One assumes it is a euphemism for "judicial liberalism," itself a rather vague term whose exponents usually describe themselves as favoring individual liberty over authority. This description is accurate, except when it isn't...(as in) Kelo v. New London (2005), in which the U.S. Supreme Court upheld the taking of Susette Kelo's Connecticut house as part of a "redevelopment" scheme that aimed to transfer ownership of her land to someone who would pay more in taxes. Four white males and one white female held that maximizing tax revenues was a legitimate "public use," allowing eminent domain. Two white males, one white female and one black male dissented.Property rights is traditionally a conservative cause, but the use of eminent domain for urban redevelopment also draws considerable opposition from minority communities, since often it is their members who have their property taken from them.Sotomayor has dealt with the question of takings in her position on the Second Circuit. In a February 2008 Forbes article, Richard Epstein of the University of Chicago laid out the details:In 1999 Port Chester [N.Y.] established a redevelopment area, in which new projects could be built only after getting approval from a village-designated private individual, Gregory Wasser, to whom the municipality inexplicably delegated its regulatory authority. In 2003 two owners of a plot within the redevelopment zone, Bart Didden and Domenick Bologna, asked Wasser for permission to build a CVS pharmacy. According to Didden and Bologna, Wasser responded: Either pay me $800,000 to build, give me a piece of the action, or I'll have the village take the property. The day after they spurned the offer, Port Chester did indeed start the takings process. Wasser then arranged for Walgreen to develop the site...Didden and Bologna will be compensated for the value of their land, as the Constitution requires. But they "won't get any compensation for the work they did to put together the CVS deal...their legal, expert or appraisal fees." And it's a bum deal for the taxpayers too:The village, for its part, has paid undisclosed legal fees to fight Didden...It takes no financial wizardry to see that the expenses on both sides of this high-priced battle are a social waste if all they do is replace a CVS pharmacy with a Walgreens. ...flaw of modern takings law. Undue judicial deference creates large amounts of government discretion that in turn invites self-interested actors to game the system. Current constitutional law subjects most development rights to government vetoes, which invite perpetual intrigue and personal favoritism.In a Forbes column today, Epstein writes that in Didden v. Port Chester, Sotomayor and her colleagues "did [the white male who wrote the Kelo decision] one better":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."Earlier this month, Jeffrey Rosen of the liberal New Republic argued against Sotomayor's nomination on the ground that various anonymous people "expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative."We hope Republicans who interrogate La Jueza Empática during her confirmation hearings will be more high-minded than Rosen's hit piece. They ought to have no shortage of material...............
*****Epstein's article points out that Sotomayor's decision in the Didden/Port Chester case
http://tinyurl.com/qmjguj
The Sotomayor Nomination by Richard A. Epstein, 05.26.09,The hidden costs of presidential empathy....I decried President Barack Obama's insistence that empathy would weigh heavily in the scales...reading the arguments that were put forth to justify the nomination of Sonia Sotomayor of the Second Circuit to the Supreme Court, it appears that all the bad chickens have come home to roost...characteristics that matter most for a potential nominee to the Supreme Court have little to do with judicial ability or temperament, or even so ephemeral a consideration as a knowledge of the law. ...The president wants to choose "a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation's first Hispanic justice."...none of these factors disqualifies anyone for the Supreme Court. But affirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S...the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics...that concern the fortunes of American business...a president whose professed devotion to the law takes a backseat to all sorts of other considerations....compensation packages of key AIG... executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors...bankruptcies are sure to generate many a spirited struggle over...The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other. 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. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters. Jurisprudentially, moreover, the sorry Didden episode reveals an important lesson about constitutional law. It is always possible to top one bad decision (Kelo) with another (Didden). This does not auger well for a Sotomayor appointment to the Supreme Court. The president should have done better, and the Senate, Democrats and Republicans alike, should subject this dubious nomination to the intense scrutiny that it deserves.
Richard A. Epstein is the James Parker Hall distinguished service professor of law at the University of Chicago, the Peter and Kirsten Bedford senior fellow at the Hoover Institution and a visiting professor at NYU Law School. He is a columnist at Forbes.

http://tinyurl.com/ql9d5q The 'Empathy' Nominee Is Sonia Sotomayor judically superior to 'a white male'?