Before I get to Sotomayor, I have to scold Savage. You never knew a thing about the word cuckquean until I brought it to your attention. Credit, s'il vous plait?

I give the Sotomayor hearing yesterday a 6. The highlight:

Senator Graham won, I think. He came off as genuine and frank and funny, which explains why he's been on so many Sunday talk shows lately. He's not "the future of the Republican party" because he's not what you would call polished—but since when did that scare anyone away from puffy-faced John McCain?

The zinger: "Unless you have a complete meltdown, you're going to be confirmed." It's nice to hear someone cut through the bullshit. Unfortunately, no, I don't think it was a comment on fiery Latina propensities—Senator Graham is being wry, not sarcastic; that remark wasn't obnoxious, just good-humored. The rest of his little speech is less impressive, of course. The ranting about her speeches is just lame. If you've been paying attention, you know Sotomayor's decisions are remarkably fact-intensive, technical, and narrow. She doesn't show much indication of breaking new jurisprudential ground.

So why does Sotomayor do this kowtowing to the right-wing vision of "judicial activism"? The common law (as opposed to civil law—ew, France!) permits, even invites, the creation of new law by judges. It's a stopgap measure, of course, resorted to only when the legislature hasn't bothered to speak on the subject. Which happens quite frequently. And then the power of judicial review (when the Supreme Court strikes down legislative acts—think Lawrence v. Texas) is as old as Marbury v. Madison. Let's not pretend it's not part of our national heritage. So I was pretty disappointed by Sotomayor's wholesale disavowal of judicial activism:

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law - it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress's intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

Yeah, it's mostly in the past tense, and it's true—appellate court judges have to be deferential, and Supreme Court Justices only have to pretend to be deferential. Sotomayor is plenty smart. So I don't necessarily think she'll be as picky and small-picture as she's been as a 2nd Circuit judge. But why this charade? Absent a meltdown, as Senator Graham has acknowledged, Sotomayor will be confirmed. So she—and her Obama administration handlers—are giving up a priceless opportunity to fight the Republican "judicial activism" publicity machine. Too bad.

Hearings continue this morning at 6:30 am. Enjoy.