Senator Cornyn has hired GW law professor (and Volokh Conspiracy blogger) Orin Kerr to assist him for the confirmation hearings for Judge Sonia Sotomayor. On Salon, Glenn Greenwald argues that Kerr’s previous comments on the Sotomayor nomination undermine Republican concerns about Sotomayor.

Greenwald’s argument strikes me as meritless. In the first set of comments Greenwald highlights, made by Kerr on the very day of the nomination, Kerr expressly states that he doesn’t “know a ton about Sotomayor” and he merely talks about what “her resume hints at.” Big deal.

Greenwald alleges that Kerr “denied the importance” of “the claim that [Sotomayor] uses ‘empathy’ in lieu of the law.” But Kerr, in the post that Greenwald discusses, actually distinguishes between “doctrinally relevant empathy” and “doctrinally irrelevant empathy,” and he specifically and expressly disputes the notion that “the entire debate over empathy is basically bogus.” Parsing President Obama’s statements, he finds troubling that Obama is approving of the use of “doctrinally irrelevant empathy.” In context, his comment “I don’t think the meaning of ‘empathy’ is really such a vital issue” means that we need to focus on the objectionable use of “doctrinally irrelevant empathy.” That seems entirely correct to me.

Greenwald also highlights Kerr’s endorsement of Judge Bork’s statement that the “judge’s proper task is not mechanical.” But the claim by some that judicial conservatives believe that the judge’s task is “mechanical” is a crude miscaricature of legal formalism. There’s a huge gap between recognizing that the judge’s task is not mechanical and believing that it’s proper for judges to indulge their own senses of empathy (in what Kerr would call instances of “doctrinally irrelevant empathy”). Nothing in Kerr’s statements remotely suggests that he’s on the wrong side of that gap.

It would be very strange and telling if supporters of Sotomayor, rather than defending her actual record, try to deflect criticism of her by misrepresenting comments made by Senate Republican staffer.