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Surprise! No Surprises from Day One of Sotomayor Testimony

That seems to be the consensus of just about every legal and political expert who watched the first day of the Supreme Court nominee ably fending off attacks and responding to both soft and hardball questions. As we already knew, Supreme Court nominees are careful not to say anything — both because it can and will be used against them, as Republican senators made clear Tuesday, and because it would be totally inappropriate for a sitting judge who’s likely to end up on the Supreme Court to start opining on whether the court’s previous opinions were right or wrong.

The senators know that, of course, but that doesn’t stop them from asking lots of inane questions they know Sotomayor won’t answer. Sen. Lindsey Graham (R-S.C.) at times barely stopped peppering her long enough to let her start her answer before he moved on to the next subject: from racial preferences to gun rights to publicly funded abortions.

Perhaps most disturbing about the hearings wasn’t the political posturing, which is to be expected. It’s the dishonest way in which the debate has taken shape between Republicans and Democrats, as if Democrats are squishy touchy-feely people who let empathy guide judicial decision-making, and Republicans are automatons who miraculously apply the law to the facts without letting any trace of humanity get in their way.

Harvard Law Professor Laurence Tribe aptly describes how a historic and arguably important debate about constitutional interpretation and judicial processes in this hearing has become completely disingenuous:

Attending to one’s prejudices and doing one’s best to set them aside is admirable. Convincing oneself that one can render judgments in a way that makes one’s personal experiences and views irrelevant is dangerous self-deception. Why, after all, do the justices so often disagree about what result “the law” commands? What accounts for their different perceptions of the rules of law that govern disputes and of the facts involved in those disputes? Justice Antonin Scalia, among others, has publicly said that his own background and upbringing necessarily influence how he decides cases. How could it be otherwise?

Tribe was actually criticizing Sotomayor for flip-flopping on her previous positions that acknowledged she and every judge would be influenced by her background and experiences. But I don’t see Sotomayor as changing her tune so much as having to over-simplify an inherently complex and delicate concept to a bunch of aggressively tone-deaf senators, now themselves sitting in judgment and arguably abusing that power.

Sotomayor has obviously been practicing patience: Despite what Graham called her “nasty” judicial temperament, even as she dodged the slings and arrows, on Tuesday she was often smiling.

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