Before last week's Judiciary Committee hearings on the nomination of Brent Kavanaugh to be an Associate Justice of the Supreme Court, we wrote that the issue of property rights and eminent domain may come up during the hearing, even though Judge Kavanaugh's actual judicial record on that topic is pretty thin.
We were busy during most of the hearings, and the portions we viewed did not focus on Kelo, but rather on a host of important other topics. But thanks to the efforts of our colleague Elaine Mittleman (the lawyer who argued and won the sole opinion in Judge Kavanaugh's Public Use and Eminent Domain repertoire, Rumber v. District of Columbia, 487 F.2d 941 (D.C. Cir. 2007)), who sent us the video from the key portion of the hearings, we now have Judge Kavanaugh talking a bit about Kelo and property rights, and related (sort of) topics.
Senator Flake's slow hanging curve ball question opened the door. He posited, among other things, that Kelo was a big thing "in the West" (not sure where he's getting that; maybe he means that property rights are big in westerners' minds), and Judge Kavanaugh took this as a signal to take a big swing at the property and property rights issue. He hit it as you might expect:
- "Kelo was controversial" nationwide not just in the West. Judge Kavanaugh said it was also big back East and the Midwest (true). Told you this was a softball question.
- He also spoke about overregulation in the Otay Mesa "fairy shrimp" case. That was a critical habitat case, where Judge Kavanaugh, writing for himself and two other judges, held that the USFWS's finding four shrimp in one place on a 143-acre parcel was not enough evidence to support the agency's finding of critical habitat. Not related to Kelo, but okay, it is related to property rights, as much of environmental law is: as Judge Kavanaugh noted in the hearing, his opinion in Otay Mesa was "trying to apply the statute the way I saw it," but "in a way that the understood the concern of landowners."
- The next case Judge Kavanaugh mentioned was Carpenters Industrial Council v. Lewis County, in which the court held that an allegation the agency's designation of land as spotted owl critical habitat which allegedly resulted in economic harm to the plaintiff -- a loss of timber supply -- was enough for support standing.
- Same with Mingo Logan Coal v. EPA, where Judge Kavanaugh noted that the court must think about "the affected workers; businesses, workers, the coal miners ... the people in the timber industry" when assessing standing and the retroactivity of legislation.
- In response to Senator Flake's question about precedent ("when you are on the Supreme Court, precedent is only precedent until it is not precedent any more"), in which he focused on Kelo, Judge Kavanaugh responded in what was, to us, the most relevant moment of this portion of the hearing to those interested in how the Court with Kavanaugh in the Kennedy seat might consider a request to revisit the Public Use question (AMK was the fifth vote for the government in Kelo). Judge Kavanaugh laid out a series of factors (AMK!) that the Court weighs when considering whether it is "too soon" to revisit or overrule a past decision: "start with principles that the Supreme Court itself has articulated: is it grievously wrong, deeply inconsistent with other legal principles, look at the real work consequences, and at the reliance interests. So, advocates, should Judge K grab the brass ring, and if and when a case comes up, there are your talking points.
- And then, on his own Judge Kavanaugh went on a curious detour, noting that in the wake of Kelo, many state governments and courts have adopted rules which recognize greater rights under state law and state constitutions. Accurate, for sure, but of what relevance? These days, unlike before (see, e.g., Pumpelly v. Green Bay Co., 80 U.S. 166 (1871), where the Court considered the constitutionality of a taking under the Wisconsin Constitution), the Court today limits its review to federal law questions. Is Judge Kavanaugh signaling that he thinks these type of cases belong in state courts, decided under state law? Let's hope not. We're hoping that this was just an aside after a long week of sometimes bizarre process, and that Judge Kavanaugh doesn't think that property rights are somehow different than other federal civil and constitutional rights, and can be protected by state courts alone.
That was it. Not a whole lot to sink our teeth into, but enough to get us all thinking.
