Barry, the idea that Judge Sotomayor should be welcomed by conservatives because she has cited binding precedent from cases that I argued before the Supreme Court is absurd. The fact that a judge votes in my favor some of the time or relies on one of the cases I won before the Supreme Court does not mean that he or she does not hold a strict position on church-state separation or an expansive view of abortion or privacy rights.


All of the currently sitting Justices–including those who hold a strict view of church-state separation and a broad view of abortion rights–have voted in favor of my position on multiple occasions in the cases I’ve argued or been counsel of record before the Court. For example, Justices Stevens, Souter, Ginsburg, and Breyer and former Justice O’Connor all voted in favor of my position between 50% and 56% of the time. I’ve had several unanimous or 8-1 decisions in cases involving religious speech or pro-life expression in which these Justices agreed with my position, but there have also been cases where they rejected free speech or free exercise claims or held that some government action violated the Establishment Clause.

The important thing is not how a nominee would vote in a particular case but rather their overall approach to the rule of law and the role of a judge. Judge Sotomayor’s statements regarding the policy-making role of a judge, the appropriateness of taking one’s background into account in deciding cases, and the benefits of uncertainty in the law are troubling and signal the potential for an activist reading of the Establishment Clause and abortion and privacy rights. I’m sure we can agree that the American public deserves to know what Judge Sotomayor’s views are on the original meaning of the Constitution’s text, including the Establishment Clause, and the role of a judge in applying the Constitution to new circumstances.


Regarding Liberty University, it’s a private school and can decide what student activities to allow or endorse on campus. Liberty has allowed the Democrats club to meet on campus for decades as an unofficial student organization. Liberty simply declined to allow the club to use the university’s name or receive student activities funding because the club’s activities directly conflict with the university’s support for traditional marriage and the sanctity of life.


The First Amendment does not apply to private actors such as Liberty University (except in rare instances where the private actor is deemed to be a “state actor”). Private universities have broad discretion to decide what is permitted or endorsed on their campuses without running afoul of the tax code or other federal law. The government should not be telling religious colleges what they must allow on their campuses where, as here, there is no discrimination against students on the basis of race or other impermissible factors.


By the way, at Regent University, where I teach and you have lectured, we have a Democrats club for students which receives the same benefits as all other student groups. This is the University’s choice as a private college.


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