A swing and a miss at Volokh Stadium

SOTOMAYOR: And [in Kelo], the Court held that a taking to develop an economically blighted area was appropriate.

There is some mildly entertaining commentary underway at the famous highbrow gun nut website The Volokh Conspiracy, related to today's Senate Judiciary Committee hearings.

Generally, fans of The Volokh Conspiracy are — in many cases, rabidly — pre-opposed to Judge Sonia Sotomayor's confirmation to the U.S. Supreme Court. Assumedly because she's going to take away their guns (her and Frank Easterbrook and Richard Posner, apparently).

It seems some of the Volokh Conspiracy conspiracists, contributors, and commenters are busily picking apart Judge Sotomayor's testimony in the hopes of finding a few Gotcha! moments.

For example, Prof. Ilya Somin boldly claims that Sotomayor "misstated" the holding in Kelo v. City of New London, an endlessly contentious 2005 Supreme Court case wherein the majority upheld the Fifth Amendment taking of some privately held parcels of real estate for a commercial development in Connecticut.

This attempted Gotcha! moment concerns Sotomayor's use of the word "blighted" instead of "distressed," two legal terms of art in property law. Granted, they might not be interchangeable, but the following demonstrates not so much a misstep by Judge Sotomayor as the less-than-accurate enthusiasm of Prof. Somin.

Here are the highlights of the Volokh thread:

SOMIN: [Sotomayor] incorrectly claimed that Kelo upheld a taking in an "economically blighted area." In reality, both sides in the Kelo litigation agreed that the area in question was not blighted.

First of all, one does not normally characterize the holding of a U.S. Supreme Court decision by reference to what the litigating parties agreed to. That may be interesting, but it is not controlling.

And within a slightly realer reality, what the Court did say was that the 15 individual properties the municipality had exercised its takings power over were not "blighted." That is, the Court wasn't speaking about "the area," as was Judge Sotomayor.

A more careful commenter chimes in:

ZUCH: Prof. Somin, you're nitpicking here. The Court said the area was "distressed" (or at least that the CT gummint's determination that it was "distressed" was entitled to some deference; Kelo, p. 13). I don't think [Sotomayor's] characterization of the case was fundamentally wrong, even if she didn't use the 'right' words; the exact words used by the opinion, not having the text of such in front of her. There's a fine line between "blighted" and "distressed," but the fact is that she didn't say, as you imply above, that the gummint could take land for "public use" for any reason whatsoever.

Commenter Zuch has it exactly right. From the opinion:

Those who govern the City [of New London] were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.

Emphasis added.

The next commenter confirms and clarifies:

SHELBYC: The area was distressed, not the property itself. So as opposed to condemning "blighted" property to remove the blight, they were condemning property within an economically distressed area to help uplift the entire area. Big difference.

Indeed. Regardless of what the litigating parties agreed to.

So, what Judge Sotomayor was referring to by "economically blighted area" was not Suzanne Kelo's and the others' property, but rather the Fort Trumbull "area," which the Supreme Court had characterized as "sufficiently distressed," and for which Sotomayor had substituted the expression "economically blighted." (And note the qualifier.)

So the far more appropriate distinction is between the individual properties taken and the larger area targeted for municipal development, not so much the difference between "sufficiently distressed" and "economically blighted" (the latter distinction being practically non-existent, under the circumstances).

Is this worthy of Prof. Somin's own condemnation? Hardly.

Held: Sotomayor 1, Somin 0.