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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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    :: Monday, July 13, 2009 ::
    I'm about to set out to teach a nine-session unit on Comparative Constitutional Law in our summer program in Strasbourg, France. I expect I will be able to update this blog from there, but if I do, it is more likely to be with reflections on that course and on my travels than on the Sotomayor hearings or the Court's end-of-term cases.

    Just a couple of Sotomayor reflections. I've been trying to find her good points rather than her bad points, and as readers know, I've found some. That said, the "wise Latina" thing really does seem to point to a more deeply-seated identity politics that I had at first apprehended. This is a problem.

    I'm even more concerned about the volume of important cases in which Judge Sotomayor has silently concurred, or else written cursory, we-affirm-the-district-court-for-the-reasons-it-gave kinds of opinions, when more may have been called for. As a wag I know asked: if America's best-known Puerto Rican entertainer can be called J-Lo, can America's best-known Puerto Rican jurist be called So-So?

    Should conservative senators vote against confirming Sotomayor? I do not have a definite opinion on this (and it's unlikely to matter anyway). It is obvious that her voting patterns on the Court will be basically in line with core Obama constituency values. Based on past Democratic Senate voting patterns and the fact that Republican courtesy in confirmation votes is generally wasted, I could see voting repeatedly against any nominee this president sends up. But (keeping in mind that Justice Thomas was confirmed by a Democrat-controlled Senate and that some Democrats voted for him), I could see being statesmanlike and voting for her if she refrains from making that impossible by her answers in the hearings.

    Then there's the whole "So-So" thing. It wasn't a right-wing racist misogynist who first raised issues about the Judge's with-its: it was Jeffrey Rosen. It was conservatives of my personal acquaintance who said, wait a minute, back in the '70s, even with a little grade inflation, you didn't graduate Princeton cum laude without with-its. And Yale Law School? Maybe it wanted Hispanic women, but it had a lot to choose from and it chose her.

    So plainly, she's qualified. But maybe, just maybe, she's not the most potentially influential nominee Obama could have chosen. Would anyone be cynical enough to vote for her just because of that?

    Meanwhile, let Randy Barnett provoke thought with this.

    :: David M. Wagner 12:07 PM [+] ::

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