I was speaking with a colleague today about the various rhetorical attacks now being levied on Judge Sotomayor-- equating the idea of empathy for those less fortunate with prejudice, and offering Judge Sotomayor's background as a reason to think that she could not be an impartial jurist (as opposed to persons with backgrounds like those of Chief Justice Roberts and Justice Alito, for example). Both of these ideas come from the mouth of that paragon of judicial probity, Jeff Sessions, Senator from Alabama. It is a new and improved way to play the race card, to seek to imbue issues of judging, impartiality and fairness with decidedly racial overtones. Perhaps a decade or fifteen years ago I might have been worried about its force. I am no longer. It is true that the sort of attack we see Senator Sessions making might resonate with a certain part of the population, and especially parts of the often celebrated Republican base. But the percentage of Americans who are likely to be moved by these thinly coded appeals to race has shrunk over the years, and it continues to shrink with each passing day. It is an update of the politics of racial resentment of the 1980s and 1990s in a country that is some twenty years past those debates.

I entirely agree with Professor Balkin on this, as I do on most things. But isn't it a shame we could not have a robust discssion of the role of the Supreme Court, of competing judicial philosophies, of the spearation of powers, etc.? Some would chalk this failing up to the standard judicial confirmation nonsense. I disagree. This went further. When Roberts and Alito were before the Senate, cases were discussed. Legal philosophies were discussed. At least by some Senators.

There was nothing like that discussed here. All we saw was racial hatred. From Republicans. Of a Latina woman.

As a Democrat, I am mightily pleased. Nothing could have been better for the political fortunes of my party. As a citizen, it saddens me that the GOP will not let go of its Paranoid Style.

Update - For some reason, Jonathan Adler wants to declare "victory" for "judicial restraint" (somehow he sees that as a victory for conservatives):

It is almost as if she and her White House handlers believe that a more forthright explication of a liberal judicial philosophy -- a philosophy like that articulated in her speeches and defended by the president -- would pose an obstacle to her confirmation.

If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. . . . [D]oes this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama's nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

This is, of course, ridiculous. In fact, Sotomayor said precisely nothing about anything for 2 days. Then again, that was better than the performance turned in by then Judge Roberts - who basically dissembled, if not downright lied for his two days of testimony.

Speaking for me only