For the past three decades, Republicans have promoted the myth that a clean, objective division can be made between law and politics in the context of judging.  This view attempts to promote the idea that judging is a simple, mathematical process: a case comes before the Supreme Court, justices (unless they are "activists") identify the right constitutional amendment or statutory provision, and the case basically decides itself.  As Sen. Sessions claimed on the first day of Judge Sotomayor’s hearing, law has "fixed meaning"–except when it is hijacked by liberal activist judges.  

As David Waldman rightly puts it, this is "an infantile view of legal realities."  Everyone who goes to law school and studies the Constitution and Supreme Court decisions learns pretty quickly that the kind of legal case that makes its way to the Supreme Court is not a mathematical equation capable of yielding only one clear and objective answer.  The Constitution contains ambiguous terms like "due process", "establishment of religion", and "probable cause".  The Constitution does not contain any instructions as to how it is to be interpreted, as to how these grand, ambiguous terms are to be applied to specific cases.  This would be impossible: the framers could not anticipate every case to come before the courts.

Given this reality, it has fallen to generations of Supreme Court justices to interpret and apply the Constitution’s grand promises.  Its decisions can vindicate what most of us see, at least in retrospect, as foundational principles of democracy (Brown v. Board) or they can tragically fall short of the mark (as in the Dred Scott case or Korematsu v. U.S., a 6-3 decision ruling that the order to intern Japanese-Americans in camps during WWII was constitutional).  Its decisions, especially the landmark ones, are often controversial.

In Republican-world, only pinko commie liberal activist judges allow subjectivity to influence their decisions.  Judges on the right wing of the spectrum are pure of heart and mind, never influenced by anything but the clarity of the law.  In the real world, we see evidence of subjective views even in the opinions of justices like Scalia and Kennedy.  In Lawrence v. Texas, the 2003 case in which the Court struck down laws criminalizing certain sexual activity, including same-sex relations, Justice Scalia’s dissent accuses the Court of "largely sign[ing[ onto the so-called homosexual agenda" and compares consensual sex between two men to prostitution, bestiality and obscenity.  It must be a coincidence that Justice Scalia also ruled against claims by gay and lesbian people brought in the Romer case in 1996.  In Gonzales v. Carhart, the 2007 case in which the Court upheld a federal law prohibiting so-called partial birth abortions, Justice Kennedy, writing for the majority opined that "[w]hile we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."  Justice Kennedy concedes that his view is not based on objective data–sounds like he dipped into his own real world experience and views to craft this sentence.

The reality, of course, is that all judges, as human beings, have their personal experiences, biases, and subjective views.  That’s not necessarily a bad thing in light of the fact that constitutional and statutory questions don’t always lend themselves to one clear, objective solution.  If the Republican view of judging were accurate, then we wouldn’t need human beings to decide cases: computers could do the job.  In fact, machines would be preferable to humans as it would be much easier to remove subjectivity and empathy from the process.  In reality, judging and applying the Constitution simply doesn’t work that way.  The line between objective law and subjective politics is not always clear.  

Sometimes, it is easy to see the overlap between law and politics–for instance, during a Supreme Court confirmation hearing presided over by elected U.S. Senators.  Sen. Grassley may primly declare that political battles are appropriately fought in the legislative branch, not the judiciary, but, once again, reality is not so black and white.  A Supreme Court confirmation hearing gives Senators the opportunity to fight a political battle over the composition of the judiciary.  What’s the test for confirming a presidential nominee?  To paraphrase Gerald Ford (he was speaking in a different context), it’s whatever 51 (or 60 if cloture is required) senators decide it is.

In the real world, Judge Sotomayor is almost certain to be confirmed, barring a "meltdown" or some sensational turn of events, as even Sen. Lindsey Graham conceded.  She will receive the votes of most, if not all Democrats, and will likely receive the votes of a substantial number of Republicans.  There is nothing wrong with that: it’s about time a Democratic president gets the chance to appoint a justice to the Court–for just the third time in 42 years.  Republicans presidents have appointed 14 justices during that period of time.  Given that the law is not a science, that reasonable justices can reach different conclusions about the cases that come before the Court, it would be a good thing to take a first step toward restoring some balance to the Court.