July 20, 2009

Sotomayor and the Volokhians redux

Last week it was noted here that professor of law and Volokh conspiracist Ilya Somin had deployed a criticism of Judge Sonia Sotomayor that missed its mark by some considerable margin.

In a nutshell, Somin had attacked Sotomayor over the case of Kelo v. City of New London, where the Fifth Amendment Takings Clause was exercised in Connecticut to further a local building development.

Somin said Sotomayor was wrong to refer to the area in question as "economically blighted" because, Somin claimed, the Court in Kelo determined that "the area in question was not blighted" (italics his).

This isn't exactly correct, as I explained. What the Court acknowledged was that the individual properties (in contrast to Sotomayor's "area") the government had taken were not blighted:
There is no allegation that any of these properties [that is, the individual ones subjected to the Takings Clause] is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.
Then last Thursday Prof. Ilya Somin appeared live in person before the Senate Judiciary Committee.

In his prepared remarks, Prof. Somin made reference to "'blight' condemnations of the sort licensed by Kelo." Quote, unquote. This observation in turn is supported [sic] by a footnote to an earlier piece of Somin's that appeared in a 2006 issue of Legal Times.

But there was no "blight condemnation" at all in Kelo, as Somin himself had pointed out previously at the Volokh Conspiracy.

In sum, Prof. Somin had criticized Judge Sotomayor for calling something other than those individual properties "economically blighted" yet here he is — facing Congress, no less — describing the case in terms that the Kelo majority had expressly repudiated.

Except Prof. Somin never criticized himself, only Judge Sotomayor.

How does that work, one might ask. Here, let me show you it:

This made me wonder whether Judge Sotomayor was in fact recalling Prof. Somin's own prior Legal Times scholarship and I put the question to Prof. Rick Esenberg of Marquette Law School, who was leveling the same criticism against Sotomayor as had Somin.

"I stand by my statement," came his retort. Although now he's retreated to alleging merely that Sotomayor's observation "left an impression" of her misstating the case. Oh. Well, then.

It's funny, because many other conservative critics of Judge Sonia Sotomayor are chastising her for misstating the law and for being unclear. How do you get to do both? Easy: assume the worst of her, obviously, and then labor mightily to discover it somehow.

Among the more egregious examples of this transparently fallacious technique (in reverse) appears at an online "debate" hosted by the conservative Federalist Society, which can be located here.

During the course of the discussion, one of the participants invokes the experience of Clarence Thomas, who had responded to the Senate Judiciary Committee's inquiries into his views on abortion by saying that he hadn't really thought much about Roe v. Wade, even though the decision came down while he was in law school.

Many observers found this claim to be at least mildly preposterous, pronounced as it was some 17 years after the Court's opinions in Roe.

Yet the Federalist Society disciples seem to be of the opinion that Thomas's remarks are themselves at worst "unclear," and therefore Thomas's words are naturally entitled to a careful and meticulous parsing weighted heavily in his favor and with personal anecdotes, leading inexorably to the preordained determination that whatever Thomas had said must have been righteous, upright, and True.

But as for Sotomayor's "lack of clarity," well, it can only be either that she's stupid or she's lying. Nope, no double standard here at all.

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