I said earlier that there were hints and insinuations on the Left suggesting some disappointment with the Sotomayor nomination, although outwardly they "celebrated" the nomination of the First! Latina! Justice! (Ta Daaaaa!). Now, Richard Cohen comes out and says what many more are thinking, but whose finely calibrated philosophy could never allow them to admit: Sonia Sotomayor: A Safe, Soporific Bet For The High Court

Don't get me wrong. (Sotomayor) is fully qualified. She is smart and learned and experienced and, in case you have not heard, a Hispanic, female nominee, of whom there have not been any since the dawn of our fair republic. But she has no cause, unless it is not to make a mistake, and has no passion, unless it is not to show any, and lacks intellectual brilliance, unless it is disguised under a veil of soporific competence until she takes her seat on the court. We shall see.

In the meantime, Sotomayor will do, and will do very nicely, as a personification of what ails the American left. She is, as everyone has pointed out, in the mainstream of American liberalism, a stream both intellectually shallow and preoccupied with the past. We have a neat summary of it in the recent remarks of Sen. Benjamin L. Cardin (D-Md.), who said he wanted a Supreme Court justice "who will continue to move the court forward in protecting . . . important civil rights." He cited the shooting of a gay youth, the gang rape of a lesbian and the murder of a black man -- in other words, violence based on homophobia and racism. Yes. But who nowadays disagrees?

Cohen even dares to go where even the "mean" GOP Senators would not go, saying that the Ricci case was about the denial of individual civil liberties, and that Sotomayor came down foresquare on the side of the rights of the state over that of the individual. Why can't our guys ever make points like this?

What, though, about a jurist who can advance the larger cause of civil rights and at the same time protect individual rights? This was the dilemma raised by the New Haven firefighters' case. The legal mind who could have found a "liberal" way out of the thicket would deserve a Supreme Court seat. As an appellate judge, Sotomayor did not even attempt such an exercise. She punted.

Sotomayor has demonstrated that she is minimally qualified to sit on the Supreme Court. Rah. But there are hundreds, if not thousands of Americans who can meet that standard. In relentlessly demanding the promotion of mediocraties to satisfy an unspoken quota, the Left diminshes itself and the laws it champions as constitutionally protected "social justice."

Concurring Opinions writes for a lot of us when it says that too much time and effort goes into watching and analyzing Supreme Court nomination hearings, such as the recently concluded Sotomayor hearings: Randy Barnett Revisits Rosen

But I do think that the legal blogosphere comes out of these hearings looking pretty silly and oddly obsessed with an institution that decides almost no cases that matter to the political, economic or cultural life of the country. Even were the Supreme Court to be as practically significant as, say, the House’s Ways and Means committee (a proposition which is arguable), the devotion of so many resources to the intense study of a single confirmation hearing would still be odd. The goal of such hearings is obviously to allow Senators to talk their political bases about why they ought to be reelected while pretending to talk to the nominee about why she ought to be confirmed. That’s why, for example, we’ve got witnesses on constitutional property rights, an area of law which has - to my mind - disproportionate political salience when you consider the heavy governmental intrusions contemplated by the common law tort and contract regime, never mentioned in the hearings

I get that it’s a slow news week, or perhaps even month, but the attention that law professors, lawyers and journalists have paid to this hearing is unwarranted, especially when other far more interesting problems of legal reform and regulation are pressing. Worse, it encourages the view that the Justices are our platonic guardians, who must be blessed before they ascend into the heavens.

Well, for one thing there is a lot of money and political hay to be made when a Supreme Court nomination comes up, especially when progressives have a chance to beat up a conservative nominee. Chairmen bang their gavels, Senators bang their lecterns, and civil rights groups bang their contributer lists - all raising hell about Life in Robert Bork's America (where blacks must have "back of the bus" abortions).

Nominations are also one of the few areas in government where the checks and balances between all three branches of government play out in public at once. The Court is empowered (by itself, but we won't get into that) to review the activities of the Executive and Legislative branches, but the Court's membership is dependent on being selected by the Executive and then approved by the Senate. The Senate has an opportunity, not just to determine the membership of the Court, but also to check the president's power to make nominations. And, I think, Senators (who often see legislation they labor over for years get struck down by the Court) see nomination hearings as their one opportunity to speak directly to the Court and make its members squirm a little. It shouldn't be a surprise when political emotions quickly head toward 11.

The real problem with these hearings is the air of bogusness that hovers over the proceedings. Nominees assiduously dance around questions using the now-tired formulations "I can only follow the law," "I can only decide the cases in front of me," "I cannot answer hypotheticals." My favorite is "I have to follow precedent," which should be the bumpersticker slogan for policy-making Living Constitution proponents. Should the government take private property and give it to other private interests? "Precedent," or better yet "Super Precedent," says YES! Yaaayyy! But we never hear about this until it's too late.

These evasions may look good politically, but to the average person, they look evasive and Delphic, speaking in tongues where clarity is called for. Lawyers and activists might be satisfied, but the public is left with the impression that our Supreme Court justices are robotic dullards sticking to a script that they don't really believe in.

The root of the problem is that these are lifetime appointments, and Supreme Court justices tend to be very long-lived. As Rod Blagojovich would say, a seat on the Court is a "f***in' valuable thing." The air of drama would be lowered considerably if there were term limits on the justices' time on the Big Bench. The usual objections raised against legislative term limits - they would need time to build "experience" and seniority - simply don't apply to the justices. A justice can start having an effect on the Court immediately. There's no real seniority system on the Court; all they have is their votes. Justice Kennedy became "Mr. 5-4" within a few years of joining the Court, for example. The fact that Renquist and Scalia had been there longer had no effect on that. As for "experience," the justices have that from day one.

(Just as an aside, I thought Sotomayor demonstrated once and for all that she was a fairly mediocre pick in terms of intellect. However, her work experience - while often low-profile - was impressive. She has had a lot of exposure to a lot of areas of law in her work life, but I have had to piece this together from media reports. In an ideal world, her proponents would have downplayed the "first Hispanic woman" BS and touted her solid non-judicial credentials.)

My choice would be a term limit of 20 years. This is more than enough time to make a difference. Scalia would have been termed out in 2006. Thomas would be termed out in 2011. Stevens would have been gone in 1995(!). Back in the Olden Days, which ended sometime during the Eisenhower administration, Supreme Court justices were more subject to the robust operation of God's term limits. Harry Truman made two (or was it three?) nominations in one memorable summer due to death and disease among the justices.

A 20-year term linit would bring a sense of balance back to the Court, as it would be regularly infused with new blood. It would also remove some, but not all, of the hysterics that greet nominations. Finally, it would reduce the value attached to each seat, as we would be much more likely to know when seats would be open, and plan accordingly. The Constitution is supposed to operate with a minimum of fuss and disorder, but the placement of justices on the Supreme Court has become too fraught, such that the Court itself is diminished. Term limits would be a step towards reducing this trend.

The New Haven firefighters who successfully brought the Ricci v New Haven case included 17 "whites" (which included Italian-Amercians like Ricci, whose ancestors had faced their own discrimination, but never mind) and 1 Hispanic. The Hispanic, it turns out, has had to face his own struggles because of his stance: For New Haven Firefighter In Bias Suit, Awkward Position, But Firm Resolve

The two dozen firefighters who packed into Humphrey’s East Restaurant were celebrating a coming marriage, drinking and jawboning in the boisterous style of large men with risky jobs, but Lt. Ben Vargas spent the evening trying to escape the tension surrounding his presence.

During a trip to the bathroom, he found himself facing another man. Without warning, the first punch landed. When Lieutenant Vargas awoke, bloodied and splayed on the grimy floor, he was taken to the hospital.

Lieutenant Vargas believes the attack, five years ago, was orchestrated by a black firefighter in retaliation for his having joined a racial discrimination lawsuit against the city over its tossing out of an exam for promotion that few minority firefighters passed. (No arrests were made in the attack, and the black firefighter vigorously denies having been involved.)

When the Hispanic firefighters’ association and its members — including Lieutenant Vargas’s brother — refused to publicly stand behind him, he quit the organization.

Lieutenant Vargas, who posted the sixth-highest score on the exam, was ridiculed as a token, a turncoat and an Uncle Tom — all of which, he said, “made my resolve that much stronger.”

Would it be rude for me to call this sort of thing a disgrace? And that a legal regime that supports such behavior is also fundamentally unequal and unjust no matter how many time the folks enforcing such outcomes quote and and misquote Martin Luther King?

Mostly, though, it's clear that Lt. Vargas has the wrong attitude:

“I consider myself an American — I was born and raised here,” he said in an interview on the porch of his home in the wooded suburb of Wallingford. “I love my people. I love my culture. I love our rice and beans, our salsa music, our language — everything my parents raised us with. But I am so grateful for the opportunity only the United States can give.”

Hey, Yankee Doodle! Go to Texas ,if you've got an attitude like that! New Haven don't take kindly to the likes of you!

Vargas is hardly the sort of privileged wastrel who supposedly benefits from the old-boys network that affirmative action was supposed to dismantle. But, he has no need for affirmative action because he's capable and ambitious enough to make it on his own. In fact, whatever stumbles he has had in his career have been due to the litigous efforts of lesser men than he:

He grew up in the troubled Fair Haven neighborhood of New Haven, a complicated city known for Yale University but also for urban decay, high crime rates and failed prospects, roots he sees as similar to Judge Sotomayor’s in a Bronx public housing project.

His father was a factory worker, and his mother took care of the couple’s three children. (In addition to his brother, David, who did not respond to interview requests, he has a sister who now lives in Puerto Rico.) The family spoke Spanish at home, making his adjustment to school “traumatic,” he said.

Lieutenant Vargas decided to follow the path of an older friend, John Marquez, whom he looked up to. Mr. Marquez had worked his way out of the neighborhood by joining the Fire Department.

“I used to tell him, ‘You know where I came from — if I can make it, anyone can,’ ” Mr. Marquez, now a deputy chief in the department, said in an interview. “ ‘But don’t expect anything to be handed to you. Work for it.’ ”

But Lieutenant Vargas’s aspirations were stymied by a 1988 lawsuit, filed by black firefighters, that shut down hiring for years. The lawsuit challenged a written test that relatively few nonwhites passed. In 1994, the city agreed to disregard the test, over union complaints, and hire 40 firefighters — 20 white, 10 black and 10 Hispanic.

In Judge Sotomayor, who tried to sweep this case under the rug at the appellate level, Lt. Vargas found the worst sort of enemy; a self-styled progressive who mouthed the right words about ethnic solidarity, but who was more interested in enforcing a racial spoils system that has views ambitious and capable men like Lt. Vargas as the enemy. He can pass any test you put in front of him, while others in the department will probably never pass, even if they are given the answers ahead of time. But, it is this latter group that has been able to find better protection both in politics and in the courts. If you're in New Haven, try to stay out of burning buildings, the air will be thick with equality of this sort.

Michael Barone does something rarely done outside of law school: he read the concurring opinion in a Supreme Court case, in this case, Justice Alito's concurrence in the Ricci v New Haven case. What Barone finds is an ugly look at the way racial politics works in blue-state cities, and the manner in which progressive jurists like Judge Sotomayor - who joined the cursory opinion dismissing the Ricci case at the appellate level - enforce what can only be described as a patronage system. Firefighter Case Shows Seamy Side Of Racial Politics

After the results of the promotion test were announced, showing that 19 white and one Hispanic firefighter qualified for promotion, (obnoxious race-hustling local pastor) Kimber called the mayor's chief administrative officer opposing certification of the test results.

The record shows that (cynical, "progressive" mayor of New Haven) DeStefano and his appointees went to work, holding secret meetings and concealing their motives, to get the Civil Service Board to decertify the test results. Kimber appeared at a board meeting and made "a loud, minutes-long outburst" and had to be ruled out of order three times.

City officials ignored the inconvenient fact that they had hired an independent and experienced firm -- this is a thriving business -- to draw up a bias-free test and paid a competing firm to draw up another test. Its head testified that the first firm's test was biased without seeing it. The board capitulated and decertified the test. DeStefano was prepared to overrule it if it had gone the other way.

In the bland words of the law, the fire fighter promotion exams that were at the heart of the Ricci case were simply "de-certified." As Alito writes, de-certification is a polite way of describing what happened. The tests were simply thrown out because the wrong people passed. Alito describes the penultimate Fire Commission hearing where the test results were decertified. Kimble showboated all the way through. The aggrieved firefighters who showed up to protest the injustice about to be inflicted on them were referred to as "klansmen" by one disappointed black firefighter. Klansmen? In New Haven? I would say, "grow up," but this man in only acting out the black-white "race relations" choreography that has been taped down by previous generations of cummunity activists seeking de facto reparations for a crime - slavery - that ended 144 years ago.

But Barone reserves his scorn for the educated progressives like Judge Sotomayor who enforce these sorts of racial spoils systems:

Writing in Slate, Yale Law faculty member Emily Bazelon goes further. She laments that the promotion test rewarded memorization and that it favored "'fire buffs' -- guys who read fire suppression manuals on their down time."

She is outraged that a fire department might want to promote firefighters who know more about suppressing fires, rescuing victims and protecting their colleagues rather than simply promote a predetermined number of members of specific racial groups whose self-appointed political spokesmen back the politicians in office.

Bazelon and Sotomayor, who voted to uphold the city's decertification of the promotion test, are typical of liberal elites who are ready to ratify squalid political deals -- and blatant racial discrimination -- in return for the political support and the votes that can be rallied by the likes of Kimber. You supply the numbers on Election Day, and we'll supply the verbiage to put a pretty label on your shenanigans

Sotomayor is not unique in this area. There is an entire industry - call it the race-legal industrial complex - that uses the fine words of MLK and Earl Warren and reduces them to a politically approved hustle. Blacks and Hispanics can thrive. Asians and Whites - including "ethnic" whites like Italian Ricci whose forebears had to endure their own discrimination while working thier way up the American ladder of success - cannot, at least in the realm of public service jobs.

Americans are constantly told they cannot speak honestly abou race. In fact, we are sometimes called cowards. All of this is a smokescreen to cover up what really happens: a racial spoils system whose parameters are enforced by the Al Sharptons of the world and granted approval by the Sotomayors. But that is the one thing that we are not allowed to talk about.

I am not going to get into the habit of linking to "Mother Jones," but someone there has taken a look at some of Sonia Sotomayor's judicial writing and concluded that she, uh, doesn't write very well: Sonia Sotomayor's Prose Problem

But writing has apparently plagued Sotomayor since college, when, the Wall Street Journal reports, she nearly flunked out of her first year at Princeton because her writing skills were so poor.

Justice Souter makes official what has been whispered about; he is retiring from the Court: Souter Retiring

Justice Souter, who was appointed in 1990 by a Republican president, the first George Bush, but became one of the most reliable members of the court’s liberal wing, has grown increasingly sour on Washington and intends to return to his home state, New Hampshire, according to the people briefed on his plans. One official said the decision might be announced as early as Friday.

The departure will open the first seat for a Democratic president to fill in 15 years and could prove a test of Mr. Obama’s plans for reshaping the nation’s judiciary. Confirmation battles for the Supreme Court in recent years have proved to be intensely partisan and divisive moments in Washington, but Mr. Obama has more leeway than his predecessors because his party holds such a strong majority in the Senate.

So ends the strange, relatively short Supreme Court career of David Souter, yet another GOP "moderate" who did nothing to support the philosophy of governance to which he supposedly adhered. He was sold to the Right as a "principled conservative." As told in Jan Crawford Greenberg's "Supreme Conflict," Bush 41's vetters rejected the likes of Kenneth Starr and Orrin Hatch, so convinced were they that Souter was "one of them." How wrong they were. How an obscure, affectless man from rural New Hampshire could convince the Reagan/Bush-era conservative legal establishment of his bona fides was surely one of the wonders of the age.

Souter was a liberal vote, but he was not a liberal voice. Justice Breyer and even Justice O'Conner articulated liberal jurisprudence better than Souter did. He will not be missed.

Concurring Opinions asks a question that has been in the back of my mind for years: why do appellate courts and the Supreme Court hear so many 4th Amendment search and seizure cases? Has_the_fourth amendment jumped the shark?

One advantage of blogging is that I get to pose questions that have always bugged me. In light of the Supreme Court's activity this week, in which they handed down Arizona v. Gant (a case on warrantless car searches), and heard argument in Safford United School District v. Redding (a case about the strip-search of a teenage student), here's my question -- why does the Courttake so many Fourth Amendment cases?

Now I am not a Fourth Amendment scholar, so perhaps this just reflects a certain envy that the Justices don't take the cases that I'm interested in more often. But it's always struck me that most of the Fourth Amendment cases where certiorari is granted are pretty fact-intensive. Ordinarily, you wouldn't think they would be good candidates for Supreme Court attention, even in the presence of a circuit split.

Legal insiders are looking at the tea leaves and are becoming convinced that Justice Souter will be retiring from the Court. The evidence? He has yet to hire clerks for the coming term: Concurring Opinions