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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 [+] ::
    :: Tuesday, July 07, 2009 ::
    Did Sotomayor violate a well-established bar rule in calling her solo practice in 1983-6 "Sotomayor & Associates" when evidence suggests it was just herself helping family and friends via a home practice? Nothing wrong with a home-based solo practice, but apparently it's a rule agreed-upon by all state bars that a lawyer may not imply that he/she has other lawyers working with him/her when he/she in fact doesn't.

    The intrinsic merits of this rule aren't in question here. Personally, when I see a small-time lawyer advertising as "Jethrow Puddlewhacker & Associates," I have heretore been inclined to assume that the "associates" are his secretary, his computer, his coffee-maker, and the Ford pick-up he uses to get to the courthouse. But the organized bar feels differently -- somehow it feels the public needs to be warned against inadvertently consuming the services of solo practitioners, even though solos are some of the best lawyers around for the money (shameless promotion of friends here, here, and here -- notice that all these solo firm names are rule-compliant!) -- and, well, rules are rules. We certainly know what the fate of a Republican nominee who "broke the rules" would be....

    This issue was dug up out of Sotomayor's Senate questionnaire by Eric Turkewitz on his New York Personal Injury Law Blog. It was subsequently "reported" by The New York Times with nary a hint that it was Mr. Turkewitz, or anyone else in the blogosphere, or anyone other than The New York Times, that had done the work. Apparently at the NYT, if you read it on a blog, that's reporting per se. See Credit is a Two Way Street, a post on Scott H. Greenfield's Simple Justice: a New York Criminal Defense Blog.

    A hat-tip to Walter K. Olson via Twitter.

    :: David M. Wagner 1:23 PM [+] ::
    Haven't been commenting on the Court's last week of output b/c I've been finishing a (draft of an) article on home-schooling's place in con law, and preparing my course on Comparative Constitutional Law, for our Strasbourg summer program.

    :: David M. Wagner 1:22 PM [+] ::

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