Eminent Domain Questions Asked of U.S.Supreme Court Nominee Elena Kagan at Confirmation Hearings
Even before Senator Charles Grassley (R. Iowa) questioned Supreme Court nominee Elena Kagan on July 1, 2010, about property rights and the Court’s Kelo decision, the media expected and suggested that she address the topic. See Christian Science Monitor ; or George Will’s column from the Washington Post. Senator Grassley was not satisfied with Kagan’s answers and later voted against her nomination because in “her hearing testimony, Solicitor General Kagan failed to answer directly many of the questions posed to her.” However, the Senate Judiciary Committee approved her nomination by a 13-6 vote, and Kagan’s nomination will now be considered by the full United States Senate. For more Senator Grassley and the upcoming vote, see this article from the Iowa media.
Below are excerpts of Elena Kagan’s testimony on eminent domain and property rights from her confirmation hearing:
GRASSLEY: Do you believe that the Supreme Court correctly decided the Kelo case or do you believe that the Supreme Court improperly undermined constitutionally protected private property rights?
KAGAN: Senator Grassley, it was obviously a very controversial decision that has inspired a great deal of action in the state legislatures. Of course, what the court in Kelo did was to say that the question of public use was not necessarily use by the public, but instead was use for a public purpose. And the court said that in the context of a taking of property that was done pursuant to a broad-scale urban development plan. So I think it remains an open question whether that public purpose test would apply in any other context without such a broad– scale urban development plan . . . .
[W]hat states have done in the wake of that decision, in a very striking manner, I think, is to say, “Thanks, but no thanks, you know. We don’t want that power. We don’t want to be — we don’t want to do this. We think doing this, taking property from one person to give it to another person, even in the context of a broad redevelopment plan, is not appropriate public policy.” And so a number of states . . . have passed these kinds of anti-Kelo legislation, which makes sure that the question never arises because the state government doesn’t try to affect such a taking in the first instance.
GRASSLEY: Can you think of any areas where, in your opinion, the Supreme Court has failed to provide adequate protection of constitutional property rights? And if you can think of any, then I’d like to know examples — or an example.
KAGAN: Well, you know, I’ve tried very hard, Senator Grassley, not to suggest where I see deficiencies with — in — in — in the court’s handling of cases. So I think, you know, I think I won’t answer that question with that degree of specificity.
GRASSLEY: The president who appointed you, in “Audacity For Hope,” his book, said our Constitution places the ownership of private property at the very heart of our system of liberty. Do you agree with that statement?
KAGAN: Well, I do think that property rights are a foundation stone of liberty, that the two are intimately connected to each other in our society and in our history.
If her nomination is approved, Kagan’s presence on the Supreme Court will be interesting to follow as to any property rights decisions it makes in the wake of Kelo and also the Stop the Beach Renourishment case decided earlier this summer. For more on Kelo v. City of New London and its aftermath, please check out the following posts on this blog:
Kelo Five Years Later – It Still Matters
The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.
