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Sotomayor Hearings Kick Off This Morning

The news is already abuzz with the start of the confirmation hearings for Judge Sonia Sotomayor, President Obama’s first nominee to the United States Supreme Court.

The Senate Judiciary Committee is getting all sorts of suggested questions from law professors today, ranging from the role of federalism in our constitutional system (from Stanford law prof — and former SCOTUS candidate — Kathleen Sullivan) to whether, given Sotomayor’s interest in diversity, she thinks we’ll have too many Catholics on the court if she is confirmed (the wise non-Latina question of Ann Althouse at the University of Wisconsin).

Georgetown’s Randy Barnett in The Wall Street Journal is already calling these “the Seinfeld hearings” — all about nothing — and suggests senators ask Sotomayor not how she’d decide particular cases, which of course she can’t answer, but instead how she interprets particular clauses of the Constitution and whether the Justices ought to be bound by the original meaning of the text.

All that’s well and good, and surely some of those questions will be asked by serious lawmakers today, but what’s likely to dominate the hearings and the news that comes out of them are the grandstanding statements about comments Sotomayor made decades ago in personal speeches she was asked to give about how her Puerto Rican heritage has influenced her as she rose to great heights in the legal profession.

That may make it less a “show about nothing” and more of a “show trial” staged by Sotomayor’s staunch Republican critics, who will try to choreograph the proceedings to make their point that race and gender ought to be completely irrelevant when it comes to justice, notwithstanding our long history of racial, ethnic and gender discrimination that’s necessitated legislation to combat it.

That clash between the strictly color-blind view espoused by the current Roberts court, and reflected in the majority’s decision in the white firefighters’ lawsuit, Ricci v. DeStefano, and the more liberal view of the dissenters in that case that balances the ultimate goal of a color-blind society with the history of race relations in the United States, is likely what will really be on trial today.

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