NY Times on Sotomayor

The New York Times editorializes over the Sotomayor confirmation hearings, and over what was said and not said.

It was clear that Republicans had overplayed their hand in weeks of trying to portray her as radical, intemperate and even racist. She was disarming in her appearances before the Senate Judiciary Committee — erudite, likable and eminently sensible. She defused some of the main attacks on her by backing away from a past statement that a "wise Latina" judge could decide cases better than a white man and by saying that she saw a judge's duty as applying the law, not making it.

At times, she too willingly ceded ground to her conservative questioners. We wish she had spoken out forthrightly in favor of empathy, a quality President Obama has said he is looking for in his judicial nominees. We would have liked to hear her boldly defend the idea of the Constitution as a living document, one that changes with the times. And we would have preferred if she had used the hearings to explain to the public that the much-mentioned distinction between judges making and applying the law has little meaning.

We may wonder why it is that Sotomayor felt the need to toe a conservative line during these hearings.  After all, the Democrats have a near-filibuster-proof majority in the Senate.  I don't think a Republican filibuster of this nomination will fly -- the votes just aren't there.

So why the conservative positions?

Why not defend the idea of a living, breathing Constitution? Why not defend her other positions if they're so sensible?  Surely she doesn't need to convince the Democrats, does she?

Or is the notion of a flexible Constitution more of a minority position than its defenders would have us all believe?

And is the distinction between judges making law and applying law really that small?  Or do too many people recognize the first as that "judicial activism" that either isn't supposed to exist, or to be evenly distributed on both ends of the left/right divide?

Maybe the New York Times editorial board will spend some time defending these points, since the current nominee declines to do so.