During the Sotomayor confirmation hearings over the past few days, legislators have spent a lot of time talking about wise Latinas, empathy and crack cocaine. But they have, for the most part, been strangely mute on one important subject: property rights.

To be sure, Sotomayor’s predilection for identity politics, her ambivalence towards the Second Amendment and her questionable record on the First Amendment are all pressing issues, but there is no constitutional right under greater attack at the moment than that of property. And Sotomayor is on the wrong side.

Sotomayor was asked her opinion on the controversial 2005 Supreme Court case, Kelo v. City of New London, in which the Court decided that it was legal for a city to seize property using eminent domain and transfer it to a private company under the guise of “economic development.”

Simply put, the government can now legally seize your property, whether you like it or not, to make way for a Wal-Mart or a condominium. Justice O’Connor, in a withering dissent, said: “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

Of course, Sotomayor gave the patented Supreme Court nominee answer to any such question: “Blah blah blah … bound by precedent … stare decisis … blah blah blah.”

But then she said something very interesting: “I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate.”

Except the area in question was not blighted. In fact, that was the whole point. Before Kelo, a city needed to prove property was blighted — that is, decrepit or in poor condition — before it could be seized through eminent domain.

The question at the heart of Kelo was whether a government could seize perfectly good homes and properties to make way for more economically lucrative development.

As legal blogger and assistant law professor at George Mason University Ilya Somin pointed out, Sotomayor’s mistake was “somewhat surprising, given that she was surely prepared to answer questions about her own controversial ruling applying Kelo.”

Somin was referring to Didden v. Village of Port Chester, on which Sotomayor sat. In Didden, the city of Port Chester, N.Y. awarded a local developer rights over a “redevelopment area” to condemn and build as he pleased. (Such collusion is commonplace in the post-Kelo era.) When two property owners, Bart Didden and Dominick Bologna, sought a permit to build a pharmacy, the developer demanded his share of the loot, which amounted to $800,000 or a 50 percent interest in the pharmacy. According to Didden and Bologna, the developer threatened to condemn their property if they refused.

The property owners said no, and a day later their property was condemned. Didden and Bologna sued, but the court (Sotomayor included) ruled against them, basically upholding extortion.

Somin called the the case “the worst federal court property rights decision in recent memory.”

To be clear, eminent domain is not simply a bone in the craw of conservatives. The Kelo decision outraged just about everyone – liberal, conservative and libertarian. Conservatives and libertarians hated it because it eroded individual property rights, and liberals hated it because eminent domain most often targets poor and minority neighborhoods.

The only people pleased by Kelo were city governments and developers, the ones who profit from eminent domain. (Okay, I did once read a defense of Kelo from an avowed Marxist who claimed it was good because it strengthened the central government and allowed for more “social planning.”)

Arthur Lee, a delegate to the Continental Congress, once said that the right to property is “the guardian of every other right.” And it’s true; without the claim to property, all other civil liberties are moot. As such, a Supreme Court justice should be a firm and unwavering champion of this most fundamental right.

Sotomayor is not.