Kagan Probably Doesn’t Belong on U.S. Supreme Court (given Sotomayor as a precedent)
Obama appointee Sotomayor shows lack of fitness to be a USSC Justice, so why should we expect better from Kagan?
by Bill Levinson
As reported by the New York Times, the U.S. Supreme Court ruled 5-4 that the Second Amendment, just like the rest of the Bill of Rights, applies to states and municipalities as well as the Federal Government. One does not have to be a Supreme Court Justice or even a lawyer to understand this; all one needs is a basic high school education in American history and civics. It is impossible to imagine, for example, a state or city enacting a law to do any of the following without having such law struck down on the spot as unconstitutional:
(1) Curtailing peaceful freedom of speech
(2) Enacting a state religion or saying that you cannot hold a government post unless you belong to a particular religion.
(3) Quartering police officers or National Guard soldiers in private houses or establishments without the owner’s consent.
(4) Forcing a defendant to testify against himself; HOW many criminal convictions have been thrown out because police did not read a defendant his Miranda rights?
(5) Enacting cruel and unusual punishments like public flogging, branding, drawing and quartering, and so on
(6) Slavery (violation of the 13th Amendment, not part of the original Bill of Rights)
Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer have already shown their unfitness to serve because of the infamous Kelo decision, which says municipalities can seize property through eminent domain for the benefit of private gain as opposed to public use. Barack Obama’s appointee Sonia Sotomayor, who supported the taking of private property for private gain in Diddick vs. Port Chester, joined Stevens, Ginsburg, and Breyer in saying that the Second Amendment, unlike the rest of the Bill of Rights, does not apply to states and municipalities. This suggests that no jurist appointed by Barack Obama is likely to be suitable for any post of public responsibility, let alone a lifetime one on the U.S. Supreme Court.
Sonia Sotomayor’s ruling in Didden vs. Port Chester demonstrates her unfitness to serve as a responsible jurist who holds in trust the foundation of American law.
- According to Epstein and George Mason’s Ilya Somin, who wrote an amicus brief urging the Supreme Court to take the case, the facts of the Didden case go like this:
“In 1999, the village of Port Chester, N.Y., established a “redevelopment area” and gave its designated developer, Gregg Wasser, a virtual blank check to condemn property within it. In 2003, property owners Bart Didden and Dominick Bologna approached Wasser for permission to build a CVS pharmacy on land they own inside the zone. His response: Either pay me $800,000 or give me a 50% partnership interest in the CVS project. Wasser threatened to have the local government condemn the land if his demands weren’t met. When the owners refused to oblige, their property was condemned the next day.”
“Didden and Bologna challenged the condemnation in federal court, on the grounds that it was not for a “public use,” as the Fifth Amendment requires. Their view, quite simply, was that out-and-out extortion does not qualify as a public use.”
But a Second Circuit panel, which included Sotomayor, upheld the taking.
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.”
We had a total of one course in business law but we are probably better qualified to interpret the U.S. Constitution than Sotomayor (or Ginsburg, Stevens, and Breyer) because it requires primarily the ability to read the English language at the junior high school level plus common sense.
* Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain.
No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Fifth Amendment allows the government to force an individual or business to sell its property for a public use such as a road, bridge, or public park, and requires that the government pay fair compensation for the property so taken. Nowhere does this say a government can force an individual or business to sell property to another individual or business for a price set by the government, which is simply the government sanctioned equivalent of retail theft through price tag switching. Consider for example the difference between the Federal government taking the South’s slaves for a public purpose (emancipation) through eminent domain while paying the slave owners whatever they had paid for the slaves in the first place, and a Southern municipality forcing one plantation owner to sell his slaves to another plantation owner at a price set by the local government (with whom the second plantation owner has political connections).
We are meanwhile sure that Wal-Mart, Target, Costco, Home Depot, and Bed, Bath & Beyond would doubtlessly call the police if they caught somebody switching price tags to pay a lower price than what they wanted, or to walk out of the store with something that was not even for sale. As shown by this article (originally from the Wall Street Journal), these businesses have themselves colluded with local governments to help themselves to legalized (by the likes of Breyer, Stevens, Ginsberg, and Sotomayor) five-fingered discounts of the same nature.
- The village of Port Chester, N.Y., is clearing an entire business district — including a marina, a housewares importer, an antiques store and several other businesses — to make way for Costco Wholesale Corp., Bed Bath & Beyond Inc. and others. …The township of North Bergen, N.J., moved to condemn a store in a shopping center occupied by Kmart Holding Corp. in favor of a developer who plans another Home Depot. When the city of Maplewood, Mo., invited retailers to compete for a chunk of choice land, developers for Costco and Wal-Mart Stores Inc. fought a nasty legal and political battle. Wal-Mart’s developer won — and 150 homes and businesses were condemned.
Costco does not even recognize that it is doing anything wrong:
- Costco, based in Issaquah, Wash., is the most outspoken of the big retailers in defense of the practice. In a candid letter to a concerned shareholder two years ago, the company’s senior vice president for legal and administrative affairs, Joel Benoliel, acknowledged that “probably dozens” of its projects involved eminent domain “or the threat of it.” He wrote that if Costco didn’t do the deals, “our competitors for those sites, like Target, Home Depot, Kmart, Wal-Mart, BJ’s, Sam’s Club and many others, would … and our shareholders would be the losers.”
We are sure that shoplifters who prey on Costco and the other chains mentioned in the article say pretty much the same thing; “If I didn’t steal this item, somebody else would.” The fact that Sonia Sotomayor apparently concurs with these practices and does not understand that the entire Bill of Rights applies to the states as well as the Federal Government shows that Barack Obama is not capable of selecting qualified jurists for lifetime appointments to the USSC, and that the Senate should probably keep his further appointees on hold until he is himself replaced in November 2012.