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Richard Epstein cites an eminent domain case more egregious than Kelo that found Sotomayor in agreement.
… 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. …
Mark Steyn has Sotomayorian experience.
Krauthammer’s Sotomayor take.
Jeffrey Rosen of the New Republic wrote a series on possible nominees. Here’s his on Sotomayor. Rather than grounded in fact, a lot of this looks to be unattributed courthouse gossip.
… The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues. …
More on the Cheney debate from a few sources. William McGurn is first.
… Ironically, it was left to Chris Matthews — one of the vice president’s most unrelenting critics — to offer the best take on last week’s dueling speeches. On his Sunday show, he put it this way: “I saw something from Barack Obama I never even saw in the campaign, a sense he was listening for footsteps, that he could hear Cheney coming at him and he was defensive.”
Think about that. Back in those heady days after the 2008 election, anyone who suggested that Mr. Obama might find himself playing defense to Dick Cheney on Guantanamo would have been hauled off as barking mad. Yet that’s exactly what Mr. Cheney has pulled off, leaving a desperate White House to try to drown him out by adding an Obama speech the same day Mr. Cheney was slated to address the American Enterprise Institute.
Of course, the effect was just the opposite. The White House reaction ended up elevating Mr. Cheney to Mr. Obama’s level, and ensuring that his words would be measured directly against the president’s. Like him or loathe him, Mr. Cheney forced the president to engage him.
For much of the Beltway, the Cheney surge is baffling. After all, when Mr. Cheney left office, his reputation seemed divided between those who thought him a punch line on late-night TV and those who thought him a war criminal. As so often happens, however, the conventional wisdom seems to have blinded Mr. Cheney’s ideological opponents to the many advantages he brings to the table. …
Toby Harnden in his Daily Telegraph blog.
The spectacle of two dueling speeches with a mile of each other in downtown Washington was extraordinary. I was at the Cheney event and watched Obama’s address on a big screen beside the empty lectern that the former veep stepped behind barely two minutes after his adversary had finished.
So who won the fight? (it’s hard to use anything other than a martial or pugilistic metaphor). Well, most people are on either one side or the other of this issue and I doubt today will have prompted many to switch sides.
But the very fact that Obama chose to schedule his speech (Cheney’s was announced first) at exactly the same time as the former veep was a sign of some weakness.
Dana Milbank in his WaPo column.
… The president seemed slightly off his game. He introduced Defense Secretary Robert Gates as “William Gates,” confusing his Cabinet member with the Microsoft founder. And he was thrown off by an apparent teleprompter malfunction at the end of his speech. Mostly, though, Obama struck a defensive tone. “The problem of what to do with Guantanamo detainees was not caused by my decision to close the facility,” he reminded his audience many times. Without naming Cheney, he objected to his critics’ trying “to scare people rather than educate them.”
At just that moment, some of those very words were being distributed to the audience at AEI: an advance text, still warm from the printer, of Cheney’s rebuttal. The crowd at the conservative think tank offered no applause during or after the Obama speech but gave a warm ovation when Cheney entered the room and flashed a crooked grin. His remarks went quickly to Ground Zero and “the final horror for those who jumped to their death to escape being burned alive.”
In an echo of the with-us-or-against-us theme, Cheney told Obama: “In the fight against terrorism, there is no middle ground.”
Cheney, battling respiratory congestion, listed the many things that have made him dyspeptic. The “so-called truth commission.” The “feigned outrage based on a false narrative” of the opposition. The administration soliciting “applause in Europe for closing Guantanamo.” The “euphemisms” he thinks Democrats are using to sanitize terrorism.
“Tired of calling it a war? Use any term you prefer,” he growled. “Just remember: It is a serious step to begin unraveling some of the very policies that have kept our people safe since 9/11.”
A swift uppercut to Obama’s chin! Nine more 9/11 jabs and Cheney was ready for his rubdown.
Shorts from National Review.
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