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Opinion

Flags of caution over Sotomayor

Does she really think a judge can't be objective?

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Ricci is not the first case in which Sotomayor and her fellow panelists used the unpublished opinion to give short shrift to significant constitutional issues that merited full consideration by the Court of Appeals. She was also on the panel that decided the 2006 case of Didden v. The Village of Port Chester by unpublished summary order.

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The case involved what can fairly be described as an extortionate use of the state's power of eminent domain. Bart Didden wanted to build a CVS pharmacy on land he owned. A politically powerful developer wanted to build a Walgreens on the same spot, so he "asked" for $800,000 cash or a 50 percent stake – or else he'd have the town seize Mr. Didden's property. Didden refused and Port Chester took his land the very next day.

Instead of exploring the obvious differences between that case and the Supreme Court's controversial decision in Kelo v. City of New London, Sotomayor and her colleagues issued an unpublished decision, devoting but a single paragraph to conclude that there was "no basis upon which relief can be granted." Moreover, the panel made a wholly inappropriate factual finding that the $800,000 cash "offer" was not extortion but merely "voluntary attempts" to resolve the case. Didden – and property owners everywhere – deserved a better airing of his constitutional challenge.

Again, these cases are just a small window into what is a fairly extensive judicial record; Sotomayor has been on the bench since she was first appointed to the district court 18 years ago by President George H. W. Bush. Whether the cases are representative of Sotomayor's judicial philosophy, or merely an unfortunate attempt to go along with a fellow panelist's quick resolution of cases in order to stay on top of a burgeoning docket, remains to be seen. They do raise cautionary flags, though, which warrant a sustained consideration by the Senate Judiciary Committee, particularly when viewed through the lens of legal realism that is manifested in the La Raza article.

At the end of the day, there must be an "objective stance" to the law if the law is to have any meaning beyond the idiosyncratic "perspectives" of those who wear the judicial robe. For those who would occupy a seat on the highest court in the land, a pledge to give an objective read to the law in every case, to every party – rich or poor; union or management; black, brown, or white – should be a prerequisite to the Senate's vote of confirmation.

John C. Eastman is the dean at Chapman University School of Law in Orange, Calif., and holds the Donald P. Kennedy chair in law. He is also the founding director of The Claremont Institute's Center for Constitutional Jurisprudence. His views are his own.

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