I keep hearing from defenders of Sotomayor that her actual record doesn’t fit the image conservatives are trying to paint based on her “wise Latina” schtick. She stays close to the law, they say. She hasn’t always ruled as a racialist, etc. From what I can tell, they might have a reasonable case on that score. Regardless, I’m not sure that, if proven, this case would completely erase the relevance of her “wise Latina” routine. What a judge says away from the bench is surely relevant, and it’s hard to imagine a liberal arguing otherwise if a white nominee had issued some muddled musings on the physiological differences between (superior) old white men and the inferior crowd of minorities and women.
Nonetheless, if Sotomayor is in fact not the judge she pretends to be when mugging for the La Raza crowd, that’s good news. Her hypocrisy is a plus, not a minus. There’s plenty of good reason to assume that Sotomayor is a believer in hard left-wing identity politics. But it would be cause for celebration if it were revealed she’s merely a practitioner of soft ethnic politics masquerading as something else. If an Irish judge gave a speech to the Ancient Order of Hibernians and dabbled in a bit of excessive Irish pride, it might be inappropriate but it wouldn’t be disqualifying. But if there was evidence that he gave preference to Irish plaintiffs out of “empathy,” I would like to think that would get him in serious trouble. Also, even if he is impartial on the bench, a judge can take his schtick away from the bench too far, giving the appearance of bias. Would judge Sotomayor be your first pick in a lawsuit against a Puerto Rican organization if your livelihood was on the line? It may be entirely unfair to her, but I think reasonable people might think long and hard on that question.
Regardless, the first point is simply that while liberals may have a decent case to make that Sotomayor has been less of an “empathetic” judge on the bench than conservatives fear or claim, that hardly means conservatives are wrong to be concerned about such things. Second, putting political tactics and strategy aside, conservatives should be relieved if it turns out that Sotomayor is simply a garden-variety hypocrite.