Jay, give me a break.  Four of the nine Justices of the Supreme Court yesterday reached the same conclusion that Judge Sonia Sotomayor did as a judge on the Second Circuit Court of Appeals.  The other five reached an alternative conclusion.  So, are you suggesting that Judge Sotomayor is out of the judicial mainstream?  Or are you suggesting that four sitting justices (technically, three because Justice Souter has retired) are out of the same mainstream?  Last week, Clarence Thomas was a lone dissenter in a case involving a strip search of a 14 year old woman at a high school.  Maybe he is out of the mainstream, too.  How many mainstreams are there? (The Alliance for Justice has done a new report on just how careful Judge Sotomayor is in civil rights cases.)

Yesterday’s decision will play no significant role in the ultimate decision about Judge Sotomayor’s elevation to the high court. She will be on the Supreme Court by the time oral arguments begin in October, and will likely be there for the special September rehearing in the case of the film/ad about Hillary Clinton which the Court also ordered yesterday.  No matter how much money the “Right” spends on ads and no matter how much nonsense Republican Senators spout about “original intent”, “strict constructionism” and other code-words for “we don’t like anybody Obama wants on the court”, she will be approved by a clear Senate majority.

This is a really terrific book out by Christopher Eisgruber, the provost of Princeton University (formerly a longtime law professor at New York University law school) called The Next Justice.  It is as clear and crisp an analysis of what is wrong with the current charade we call the “appointments process” for the Supreme Court.  He argues persuasively that all Justices use both ideological and procedural “values” in deciding cases.  On “equal protection” he concludes: “The meaning of equality is fundamentally contested; judges cannot appeal to some uncontroversial standard of equality that exists outside and apart from competing theories about equality.” Thank goodness that Judge Sotomayor understands equality in a way unlike the crabbed view of, say, Clarence Thomas.

Readers interested in hearing an interview with Eisgruber can go to www.cultureshocks.com for a listen.

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