Still, it’s not completely clear if he’s warning conservatives or liberals.

In an op-ed in USA Today, he writes that “supporters of liberal judicial philosophy might find [Sotomayor's confirmation] a Pyrrhic victory,” adding that “during three days of careful questioning, Judge Sotomayor renounced the pillars of activist thinking.”

So liberals may be disappointed.

But they’re not the only ones, warns Sessions. “Pledging ‘fidelity to the law’ and practicing judicial restraint are different things,” he writes. “Which Sotomayor will we get?”

Sessions cites Sotomayor’s decisions in three cases that Republicans hammered her on during the confirmation hearings: a property rights case case that allowed the government to take property from one developer and give it to another; her Ricci decision rejecting white firefighters’ claims of race discrimination; and her decision this year finding that the Second Amendment does not provide a “fundamental right” enforceable against the states. Sessions says that “each was contrary to the Constitution.”

Those decisions, and not the statements at her confirmation hearing, show her true colors, he argues.

“I don’t believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism. She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent.”

Here’s Cornyn, speaking to Sotomayor with a tone of severe disapproval: “You wrote that the law is always in a necessary state of flux. That it’s not a definitive ‘capital L’ law that many would like to think exist. And that the public fails to appreciate the importance of indefiniteness in the law. Can you explain why you think indefiniteness is so important?”

“It’s not that it’s important to the law as much as it is what legal cases are about,” Sotomayor responded in the same patient, methodical tone she’s used throughout her confirmation hearing. “People bring legal cases to the law because they believe precedents don’t clearly answer the factual situation in their case. That’s why they bring cases.  If law was always clear we wouldn’t have judges. Its because there is indefiniteness not in what the law is but its application to new facts that people sometimes feel it’s unpredictable.”

But Cornyn persisted: “You wrote what appears to be an endorsement that judges can change the law,” he said, clearly disturbed by that idea.

Interestingly, when Cornyn criticized Sotomayor for her decision in the reverse discrimination case of Ricci v. DeStefano, and expressed his support for the Supreme Court’s decision, he didn’t mention that the Supreme Court made new law in that case. As Sotomayor explained when Cornyn expressed “shock” that Sotomayor and the other Second Circuit judges gave such “short shrift” to the sympathetic claims of the hardworking white firefighters:

“The Supreme Court in its decision set a new standard for reviewing what an employer is doing — the substantial evidence test,” said Sotomayor. That standard wasn’t addressed by the court of appeals, she said, because it wasn’t even argued to the court by the parties in the case. “That was a new standard created by a decision by the court, borrowing from other areas of the law.”

Cornyn quickly moved on to the next subject.

Sotomayor attempted to align her comment about how a “wise Latina” would in some circumstances reach “a better decision” than a white male judge with Justice Sandra Day O’Connor’s earlier statements that “a wise old man and wise old woman will reach the same conclusion in deciding cases.”“I don’t think that anyone would think we intended to say that we would make wiser decisions,” said Sotomayor today, after Kyl read portions of her 2001 speech at Berkeley back to her. “I intended to talk about the value that life experiences had,” she said. “The words I chose, taking the rhetorical fluourish, was a bad idea. I do understand that there are some who have read this differently, and I understand why they are concerned. But I have repeated, more than once, and if you look at my history on the bench I do not believe that any gender or race group has an advantage in sound judging. And I also believe that every person regardless of their background can be good and wise judges.”

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“All nine of the justices disagreed with your handling of the case,” said Hatch, who sharply criticized Sotomayor’s ruling in the case. “People all over the country have become tired of courts imposing their will against one group or another.”

As I’ve noted before, that claim that nine justices disagreed with Sotomayor in the Ricci case is just blatantly wrong.  Yet interest groups immediately after the case was decided were arguing to the public and the media that even the dissenters in that case disagreed with the opinion of Sotomayor and the two other judges on her 2nd Circuit panel.

In fact, what Justice Ruth Bader Ginsburg wrote in the dissent in that case said merely that IF the Supreme Court were intent on creating a new standard, as it did in the majority opinion, THEN it should send the case back to the 2nd Circuit to apply that new standard.

Sen. Dianne Feinstein (D-Calif.) made sure to correct the point when she began her questioning of Sotomayor.

Sessions repeatedly tried to suggest that Sotomayor had contradicted her promise during her earlier confirmation hearing to the Second Circuit Court of Appeals to uphold the law, including Supreme Court rulings barring racial quotas, by ruling against the firefighters.  But Sotomayor patiently explained that neither quotas nor affirmative action were at issue in the Ricci case. Rather, “the question was what’s a city to do when there’s proof that its test disparately impacts a particular group?” The Supreme Court created a new standard to reach its decision — one that was not even argued to the Second Circuit, she said.

Sessions did not let up, however. “Ricci raised important questions we have got to talk about as a nation,” said Sessions, noting that Judge Jose Cabranes — “also a Hispanic judge on the court”, said Sessions — voted to rehear the case.”You could have agreed with him, but you didn’t,” he said.

And so it went. What’s clear from this morning’s exchange is that just as Sen. Pat Leahy (D-Vt.) and Sotomayor’s other Democratic supporters will toss her softballs to support her nomination, Sessions and his Republican colleagues who oppose this nominee are prepared to give her a very hard time.

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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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“NOT EVEN ONE JUSTICE APPROVED SOTOMAYER IN RICCI CASE,” blares the headline of a statement from Wendy Long, counsel to the Judicial Confirmation Network, on the Supreme Court’s decision.

“Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error,” she writes.

Huh?  Today’s ruling, as I noted before, was 5-4. Five justices voted to require the city to present more evidence — what the Supreme Court calls “a strong basis in evidence” — that if the city had not thrown out the results of a promotional exam that had a disparate impact on minorities, then it would have been legally liable to any racial minorities denied promotions who sued under the civil rights law.

Setting aside, for a moment, whether that evidentiary burden makes sense, there’s no question that only five of the nine justices supported it. The other four were just fine with the law the way it was, and believed that the city had presented sufficient evidence to satisfy its decision.

Justice Ruth Bader Ginsburg, writing for the four justices in dissent, questioned the court’s “newly announced strong-basis-in-evidence” standard and recites in painstaking detail the evidence supporting the city’s decision. She went on to note that since the majority is announcing “a new legal rule,” then it should remand the case to allow the lower courts to apply it, since they didn’t have notice before that that’s what the rule was. “[T]he ordinary course is to remand and allow the lower courts to apply the rule in the first instance,” she wrote, chastising the majority for not following that usual course and instead deciding against the city of New Haven.

Within hours after the decision, conservatives had turned this notion that the majority should have remanded the case if it was going to decide a new legal rule into the idea that the four dissenting justices had repudiated Sotomayor and the reasoning of the Second Circuit panel on which she sat.

“This was a unanimous decision that the 2nd circuit was incorrect,” said Gail Heriot, a professor at the University of San Diego School of Law on a conference call organized by the Federalist Society this morning. “Nobody agreed with Sotomayor. Nobody.”

As Long continues in her release:

“Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

“What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.

Well, that’s not how Justice Ginsburg and her co-dissenters see it, as they made clear in this passage:

Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.

UPDATE: Sen. John Cornyn (R-Texas) has weighed in with his view of today’s Supreme Court decision in the Ricci case, and — suprise! — he reads the 5-4 decision as a 9-0 against Sotomayor, just like Wendy Long and the Federalist Society lawyers do:

Today’s decision is a victory for evenhanded application of the law. Saying the earlier decision was “antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race,” the Supreme Court saw the case for what it is: a “race-based decision” that violates federal law. And while the Justices divided on the outcome, all nine Justices were critical of the trial court opinion that Judge Sotomayor endorsed. [Emphasis added.]

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As Aaron noted earlier, the Supreme Court this morning decided that the city of New Haven violated the federal civil rights law when it denied white firefighters promotions based in part on their race. That the city was only acting to avoid a lawsuit under the same civil rights law shouldn’t matter, the court ruled in a 5-4 decision.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy wrote in the majority opinion, joined by the usual block of conservative justices — Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen Breyer, David Souter and John Paul Stevens. Ginsburg wrote that while the white firefighters “understandably attract this court’s sympathy,” they had “no vested right to promotion. Nor have other persons received promotions in preference to them.”

People for the American Way, which supports the Sotomayor nomination, released a statement this morning in anticipation of today’s ruling, saying that the ruling, whatever it would be, “does not reflect upon Sotomayor’s jurisprudence.”

Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.

The Federalist Society has scheduled a conference call with reporters for later this morning, at which point they’re sure to put their own spin on the decision.

Given how close the ruling was, though, it will be hard to say that Sotomayor’s decision in the lower court was either right or wrong, as a legal matter. In fact, Sotomayor was in the majority of her own court in deciding to affirm the district court’s finding that New Haven did not intentionally discriminate against the white firefighters when it tossed out the results of a promotional exam that had a disparate impact on black and Hispanic applicants. That disparate impact could have been the basis for a lawsuit against the city. Whether race was also a factor, in addition to avoiding a lawsuit, is an issue that was never directly addressed or briefed in the lower court, which, as I’ve explained before, is one reason that the full Second Circuit voted against re-hearing the case.

Whether the Supreme Court majority today made new law by deciding the way it did will be the subject of contention for weeks to come.

The case involved charges of reverse discrimination after a test for promotion in the New Haven, Conn., fire department was thrown out when white test-takers performed much better than their black counterparts. Sotomayor upheld New Haven’s decision to dismiss the test results, and her controversial ruling has been frequently discussed in the context of her Supreme Court nomination.

Although that may be because the panel did not issue a long written opinion (which Adam Liptak at The New York Times has reported was because the judges couldn’t all agree on one), opting instead to adopt the reasoning of the district court, Armando Llorens, AKA Big Tent Democrat at TalkLeft, actually bothered to read the concurring opinions among the Second Circuit justices that decided, by a majority vote, not to re-hear the Ricci case after the panel’s ruling.

Llorens finds that in fact, the panel (including Sotomayor) was being extremely conservative (as a matter of judicial philosophy, not politics) in briefly affirming the lower court’s decision. He looks to the reasoning of Calabresi, who pointed out that the white firefighters who claimed to have been denied promotions due to race discrimination failed to make the necessary legal argument supporting that claim in the court below:

In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did.

The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives.

Cabranes, who conservatives have cited as “chastising” Sotomayor in urging the full Second Circuit court to re-hear the case, thought that the court should have considered whether New Haven had these “mixed motives,” which might have violated the civil rights law. But for the Second Circuit to have undertaken that analysis on its own, when the district court did not, would have been inappropriate — and activist. As Calabresi explained in his concurrence:

Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue.

Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided – and rehearing en banc is always a matter of choice, not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case.

The emphasis above is supplied by Llorens, who seems to be the only one to pick up on this important point. For the panel to have decided whether New Haven was motivated by a mixed motive would have been an “activist” position to take. And Sotomayor and her colleagues are no activists.

That should please those Republicans who say they don’t like judicial activism. Then again, some conservatives actually like judicial activism — when it’s promoting an ideologically conservative cause.