Yesterday's Sotomayor hearing was very exciting. It began with Senator Leahy rhapsodizing about the "Tarzan Burglar" ("He terrorized people in Harlem. He would swing on ropes into their apartments and rob them and steal, and actually killed three people"), continued with Sotomayor warning of the dangers of nunchucks...

[choice quote: "[I]f there's anybody near you, you're going to be seriously injured, because that swinging mechanism can break arms, it can bust someone's skull"]

... and concluded with Senator Graham using up any residual goodwill he had earned during his tousle-haired opening statement by haranguing Sotomayor in an extremely unflattering fashion:

But good TV, no?

If you'll forgive me, I have to return to one point I made yesterday: the Obama administration's decision to have Judge Sotomayor ventriloquize tired Republican talking points about judges "applying the law" rather than "making law." One can only imagine what damage it does to the brain to hold these thoughts simultaneously:

SOTOMAYOR: Judges must apply the law and not make the law.


SOTOMAYOR: The Supreme Court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. And that is was there substantial evidence that they would be held liable under the law. That was a new consideration.

Our panel didn't look at that issue that way because it wasn't argued to us in the case before us and because the case before us was based on existing precedent. So it's a different test.

Not to mention the very existence of federal common law. But enough from the lowly first-year law student. Here's a Georgetown law professor (and former Thurgood Marshall clerk) on applying the law:

Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

You can read the transcript of yesterday's hearing here. Today's proceedings begin at 6:30 am Pacific time.