Two D.C. lawyers said at Georgetown University Law Center today that a controversial ruling on property rights could come back to hurt Supreme Court nominee Sonia Sotomayor.
The case, Didden v. Village of Port Chester, has already drawn some attention on conservative blogs and in a Forbes piece by Richard Epstein of the University of Chicago Law School. It involves condemnation within a village "redevelopment area," and Sotomayor was part of a panel on the U.S. Court of Appeals for the 2nd Circuit that upheld a taking.
Roy Englert Jr., on a panel at Georgetown, called Didden "the sleeper case" for Sotomayor's nomination. "It's a disturbing case, and you don't have to believe Kelo was wrongly decided to find this case disturbing," said Englert, a partner at Robbins, Russell, Englert, Orseck, Unterreiner & Sauber.
"This is a case that could have enormous political legs," agreed Richard Lazarus, co-director of the Supreme Court Institute at Georgetown, who was also on the panel. The panel included academics, appellate practitioners, and journalists who are covering Sotomayor's nomination.
Republicans have been sorting through Sotomayor's long record on the 2nd Circuit and on the U.S. District Court for the Southern District of New York. So far, the criticism hasn't focused on any one case, and Sotomayor found some support Tuesday for a ruling she joined on the Second Amendment. Click here for more.
Patricia Millett, another panelist today, called the criticism of Sotomayor for the Second Amendment ruling "among the most ridiculous issues" raised against the nominee. "Everyone knows that the incorporation issue is not something that the Supreme Court has revisited since Heller," said Millett, co-chair of the Supreme Court practice at Akin Gump Strauss Hauer & Feld. In D.C. v. Heller, the Court ruled a year ago that the Second Amendment protects an individual right to bear arms, though it left open whether the right prevents state restrictions via the "incorporation" principle.
Englert described Sotomayor's opinions as "thorough, long, and unimaginative" because of her tendency to walk through every step of her reasoning. He said her writing shows a "slavish attention" to precedent and to statutory interpretation.
It's a style that Susan Bloch, a Georgetown law professor who was on the panel, said might be attributed to Sotomayor's status as a pioneering Hispanic woman in the judiciary. "I think it comes from being a first and having people ready to trip you up," Bloch said.