The bumper-sticker liberal view of constitutional interpretation might begin with President Obama’s assertions that "the Constitution… is not a static but rather a living document and must be read in the context of an ever-changing world," and that "we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom" or "to be poor or African-American or gay or disabled or old."

The bumper-sticker conservative view might begin with the standard denunciations of "legislating from the bench" and "judicial activism." Other formulations include: "Judges are like umpires. Umpires don’t make the rules; they apply them." "As a judge, I don’t make law…. I apply the law to facts." "Judges… don’t determine the law. Congress makes the laws. The job of a judge is to apply the law."

It’s notable that while the "umpire" analogy came from Bush nominee John Roberts in 2005, the subsequent two conservative-sounding quotes came from Obama nominee Sonia Sotomayor.

Sotomayor worked very hard last week not to sound like a liberal. So hard as to suggest that she and her White House handlers understand that the living-Constitution-plus-empathy approach is seen by many voters — fairly or unfairly — as a facade for judges rewriting the law to favor liberal constituencies and causes.

But the simplistic picture painted by many conservatives — and now by Sotomayor — of judging as a mechanical exercise with no place for moral and political values is unreal to anyone who understands the subjective nature of the choices that judges, and especially justices, must often make.

As one who had hoped for a moderately liberal, intellectually honest nominee and feared the possibility of an unprincipled left-liberal ideologue steeped in identity politics, I am having trouble figuring out Judge Sonia Sotomayor.

Sen. Lindsey Graham, R-S.C., captured my own puzzlement when he told Sotomayor on Tuesday that although her 17-year judicial record struck him as "left-of-center but within the mainstream, you have these speeches that just blow me away…. Who are we getting here?"

Graham was talking mainly about a succession of at least five very similar speeches between 1994 and 2003 in which Sotomayor appeared to glorify ethnic and gender identity repeatedly at the expense of the judicial obligation to be impartial and suggested that "a wise Latina woman" would be a better judge than "a white male."

In response to questions such as Graham’s, Sotomayor and her supporters have touted her judicial decisions as proof that she has been a solid, impartial judge.

They have a point. Sotomayor’s more than 3,000 mostly unremarkable rulings have not been ultra-liberal, have not displayed any broad pattern of bias in race or gender cases, and have closely followed precedent. Ordinarily, a judge’s record on the bench is the best guide to what she would do on the Supreme Court. She has also lived an admirable life.

But how persuasive were Sotomayor’s efforts to explain away those jarring speeches? Below I juxtapose excerpts from a typical speech — in October 2001, to an audience of Hispanic activists and others at the University of California (Berkeley) — with portions of her testimony on Tuesday and Wednesday.

• Berkeley speech: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."

From National Journal‘s July 18 issue:

As one who had hoped for a moderately liberal, intellectually honest nominee and feared the possibility of an unprincipled left-liberal ideologue steeped in identity politics, I am having trouble figuring out Judge Sonia Sotomayor.

Sen. Lindsey Graham, R-S.C., captured my own puzzlement when he told Sotomayor on Tuesday that although her 17-year judicial record struck him as "left-of-center but within the mainstream, you have these speeches that just blow me away…. Who are we getting here?"

Graham was talking mainly about a succession of at least five very similar speeches between 1994 and 2003 in which Sotomayor appeared to glorify ethnic and gender identity repeatedly at the expense of the judicial obligation to be impartial and suggested that "a wise Latina woman" would be a better judge than "a white male."

In response to questions such as Graham’s, Sotomayor and her supporters have touted her judicial decisions as proof that she has been a solid, impartial judge.

They have a point. Sotomayor’s more than 3,000 mostly unremarkable rulings have not been ultra-liberal, have not displayed any broad pattern of bias in race or gender cases, and have closely followed precedent. Ordinarily, a judge’s record on the bench is the best guide to what she would do on the Supreme Court. She has also lived an admirable life.

But how persuasive were Sotomayor’s efforts to explain away those jarring speeches? I juxtapose excerpts from a typical speech — in October 2001, to an audience of Hispanic activists and others at the University of California (Berkeley) — with portions of her testimony on Tuesday and Wednesday.

Continue reading the column here.

As night follows day, the spectacle unfolding as 19 senators pose their questions to Judge Sonia Sotomayor will include a succession of demands for candor about her views — especially from Republicans — which the nominee will meet with ducking, dodging and evasion.

Sotomayor will steadfastly claim, as did all of the current justices, that it would be improper to disclose her views on issues that might come before her, except at a high level of generality. And she will be right.

I have not always held this view, and I hold it now even though there are very strong reasons for demanding candor from a nominee who is effectively running for a lifetime appointment that will give her far more power than any member of Congress, and with no accountability to voters, ever.

Once confirmed, as seems almost assured, Sotomayor will likely spend three or more decades setting national policy (when in the majority) on issues including racial quotas and preferences; discrimination law; war powers of the president, Congress and the judiciary; abortion; church-state relations; gay rights; campaign finance; environmental law; property rights; gun control; whether judges should change the meaning of the U.S. Constitution to conform to foreign law; the death penalty; and other criminal law issues.

It’s unimaginable that any serious candidate for Congress or the presidency could refuse to tell us what he or she thinks about any — let alone all — of these issues.

So why should there be an exemption for a nominee who seeks to sit on the only body with power to strike down presidential and congressional acts?

Then-Sen. Joe Biden’s frustration was understandable when he said to John Roberts in 2005, "We are rolling the dice with you, judge…. You’ve told me nothing… as if the public doesn’t have a right to know what you think about fundamental issues facing them."