Emily, I saw a little more bend than you did in Sotomayor’s answers about the role personal experience plays in making decisions. She asserted that judges “are not robots.” She also ducked the opportunity to embrace Chief Justice John Roberts’ balls-and-strikes analogy, calling it “imperfect” and saying that “judges must always keep an open mind.” She even counseled the senators that judges “have to recognize our feelings.” I don’t think she left the whole idea of personal interpretation on the curb before she walked into the Hart Senate Office Building.
That said, she was definitely trying to stay away from the most controversial part of her “wise Latina” remarks: the idea that her experiences make her a better jurist. I think she believes what she said today: that no person’s background automatically makes them a better judge. But I also think she would agree (outside the confirmation setting, where you can have an actual conversation) that a person’s experiences on specific cases can make her insight sharper. She wasn’t about to take a big stand on that ground, though. She doesn’t want to end up in a semantic battle over what experience and facts mean. But just because she was staying away from it doesn’t mean she was closing the door to the idea that experience matters.
She’s probably right to be cautious, as you point out. It’s possible to wonder whether she lets too much of her personal background, empathy, fellow-feeling—whatever you want to call it—into her decision-making without charging, as Sen. Sessions did, that her background “affects the facts she chooses to see.” That’s not a fair reading of what she said. That’s about the most negative way to frame what she’s talked about. In another instance, when Sessions asked, “Do you stand by that statement,” she gave a creative response: “I don’t stand by the understanding”—that would be your understanding, senator—”of that statement.” Of course Sen. Leahy did this, too. When he asked Sotomayor about her “wise Latina” comments, he edited them to their most anodyne form deleting altogether the word better.
By the way, politically speaking at least, this hearing feels even more over than everyone has already concluded it to be. Sotomayor has certainly passed Lindsey Graham’s you’re-in-unless-you-have-a-total-meltdown test from yesterday.