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Supreme Court Watch: A Short List, Plus Sotomayor on Church and State E-mail
Written by Don Byrd   
Friday, 08 May 2009

When was the last time a President actually selected the presumed front-runner as his Supreme Court nominee? Doesn't seem to happen so much lately. But that doesn't stop the parade of speculation and hey, might as well wonder, right?

Jan Crawford Greenburg, who covers the Supreme Court for ABC News, reports that the White House has closed to a short list of 6 that includes Solicitor General Elena Kagan, Judge Diane Wood, and most everyone's favorite to be picked, 2nd Circuit Judge Sonia Sotomayor.

The NYTimes' Adam Liptak suggests the President will choose someone "bolder" than Souter. The Washington Post reports that the coming political battle over the nominee was being planned within hours of the announcement of Souter's resignation.

In a Fox News interview, Jay Sekulow of the conservative ACLJ is already claiming Sotomayor "has a very, very strict view of church-state separation", offering no specific case to support that description (not that it would be a bad thing...).

So what do we know about Sotomayor and church-state issues? Is it just wishful thinking on the part of Sekulow, hoping to rile up his base in opposition to a "strict" separationist view? About the only evidence I can drum up from published opinions is her dissent in Hankins v. Lyght (pdf), in which she argued that the majority should not have discussed RFRA in an age discrimination claim involving a clergyman because: a) the "ministerial exception" already precludes the courts from getting involved in such religious hiring matters, and b) RFRA, she said, does not apply in disputes between 2 private parties, but only challenges in which government is a party.

I'm not sure that comes close to justifying Sekulow's claim. What else is out there?

 

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