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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, May 28, 2009 ::
    Sotomayor v. Darlingsweety. Advantage: Sotomayor.

    While much of the right gears up against Judge Sotomayor, I myself (am I a little corner of "the right"? I blog: you decide) keep finding reasons to find her a remarkably friendly nominee, considering the President whose constitutional job it is to choose the Justice this time around.

    In what looks like a free-speech ain't-she-mean story, we learn that Judge S. "ruled against" a high school student who called school officials "d_____ bags" on her blog because they had interfered with some piece of fun or other that she was arranging. Said officials then disqualified her from running for school government. So then her mom, of course, sued. After all, what's the cost of litigation compared to that student government line on the college app? Even if they lose, it's a heckuva story for the app essay.

    Well, to begin with. First, on the merits, this case is squarely within Bethel v. Fraser, with strong backup as well from Hazelwood v. Kuhlmeier. A Circuit Judge is bound by Supreme Court precedent. The school district wins. The 2nd Circuit panel ruling was unanimous. E-Z.

    Second, the holding was not on the merits, but on a preliminary injunction, to which a plaintiff is entitled only if she has a strong chance of prevailing on the merits. Since Miss Avery Doninger didn't have a sheep's chance in a raptor's cage of prevailing on the merits, her request for a prelimary injunction bordered on the frivolous.

    But there's more. In days of old when knights were bold, parents who didn't home-school realized that delegating the education of one's children to others -- especially to the government -- is kind of an all-or-nothing deal, and that those entrusted with this difficult task can't really carry it out if they're constantly being micro-managed by parents whose children, by definition, can do no wrong. As a result, parents realized that their children can, in fact, do wrong, and as a result, gave school officials some slack, and their kids some discipline.

    Not any more. Now any conflict between Hunnybun and Authority is WAR, so Miss Doninger's mom sued. And got a perfectly correct result from our friend Judge Sotomayor -- well actually from Judge Livingston, but she was joined on the unanimous panel by Judges Sotomayor and Preska.

    I don't look for these examples; I just find 'em and comment on 'em. The esteemed Wendy Long may have been right when she called Sotomayor "a liberal judicial activist of the first order." As soon as Ms. Long finds a case by Sotomayor (as distinct from a snippet of a speech or two) that actually demonstrates this, I'm sure she'll pass it along to the rest of "the right."

    :: David M. Wagner 2:19 PM [+] ::

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