Opinion: Sotomayor hearings: Jab and dodge on the ‘taking clause’

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Sen. Charles Grassley of Iowa, a Republican, who told Judge Sonia Sotomayor in his opening statement Monday that he had doubts about her ability to be an impartial judge, pressed her on her philosophy about individual property rights and the right of the government to take property, as provided by the Constitution.

He asked her for her “general understanding” of the “taking clause,” particularly as it applied to the Kelo case, in which the Supreme Court upheld the right of a city to take private property for a shopping mall.

Sotomayor, not about to forgo the opportunity for deference to a Republican senator, began by saying, “Good afternoon, senator. It’s good to see you again.”

“With respect to the importance of property rights,” she said, “I just point out to you that another case involving that issue that came before me. … In a series of cases involving a village in New York, I ruled in favor of the property owner’s rights to challenge the process that the state had followed in his case and to hold that the state had not given him adequate notice, an adequate opportunity to express his objection to the public taking in that case.”

Grassley pressed on. “The Kelo case talked about taking private property for public purposes. Is public use and public purpose the same thing?”

Sotomayor didn’t directly answer the question: “The two informed each other.”

But Grassley was not satisfied. “Do you believe the Supreme Court overstepped?”

Sotomayor deflected again. “ I know there are many litigants that have expressed that view, and many state legislatures….The question of whether the Supreme Court overstepped the Constitution … I have to accept because it is precedent … and I can’t comment further than to say that I understand the questions and what state legislatures have done and would have to wait another situation to apply the holding in that case. ...

‘It’s the court’s holding and so it’s entitled to stare decisis deference.” (Stare decisis is the legal term for the tradition of the court respecting legal precedents.)

-- Robin Abcarian

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