From WNYC in New York, this is NPR’s On the Media. Brooke Gladstone is away. I'm Bob Garfield.

MAN: Do you believe that judges ever change the law?

MAN: What is the settled law in America about abortion?

MAN: How is it appropriate for a judge to say they will choose to see some facts and not others?

MAN: Does a state legislature have the right under the Constitution to determine what is death?

BOB GARFIELD: Just a few of the pointed questions this week from the Senate Judiciary Committee’s confirmation hearings for President Obama’s distressingly empathetic Supreme Court nominee, Sonia Sotomayor. Some on the Committee, it became clear, were troubled by the revelation that judges are not, strictly speaking, automatons and could let their annoying, you know, humanity inform legal thinking. As for the nominee, Slate Senior Editor Dhalia Lithwick says the hearings served as an elaborate calculus of 19 different ways to answer a question at length, without saying anything.

DHALIA LITHWICK: You can say the question is too broad so you can't answer it, you can say the question is too specific, so you can't answer it. You can say that was so far in the past I can't talk about it, or it’s so far in the future I can't talk about it, and so on. You know, there’s this whole formulation of how you don't answer questions, so why do we spend four days watching this with bated breath is actually the better question.

BOB GARFIELD: And, in fact, I want to go back to the confirmation hearings of Justices Samuel Alito and John Roberts. During those hearings, both of the nominees were at pains to deny an ideological tilt. And, as we have seen from Alito’s and Roberts’ totally predictable, totally lockstep voting records, their testimony at the time was preposterous, and, you know, I think equally preposterous when Sotomayor denies being in any way ideologically inflected. At some point, isn't this testimony just lying?

DHALIA LITHWICK: John Roberts put into popular parlance the umpire analogy. He said, this is what great judges do; they just call balls and strikes. And within four seconds people were saying, wait, umpires don't just call balls and strikes. They set the strike zone. But we're still living under the burden of that analogy and, in fact, everybody knows that to be patently false. I mean, we all know, the one thing we can all agree on is that if there were one mechanical application of the law, we would only need one judge. And it could be a supercomputer. It wouldn't even need to be a judge. So, clearly, experience matters, your history matters, your ideology, your politics, your beliefs matter. Obama had worked out this very elaborate empathy test. He said, this is what we want in a judge. We don't want an umpire who calls balls and strikes, we want someone with empathy. And she went out of her way to chuck it quite publicly and to say, that’s not what I do, that’s not what judges should do. Judges just apply the law.

BOB GARFIELD: I don't need your stinkin’ empathy!

DHALIA LITHWICK: [LAUGHING] Exactly. So to the extent that progressives had hoped that she was going to sit there and articulate the Scalia-like liberal vision of jurisprudence to explain to us what she was going to bring to the court that was beyond calling balls and strikes, she certainly did not do that this week.

BOB GARFIELD: You know, it just occurred to me that in using that line, I'm quoting Eli Wallach, who was playing a Mexican bandito -

DHALIA LITHWICK: [LAUGHS]

BOB GARFIELD: - when he said, “I don't need your stinkin’ badges.” And I have pulled exactly what Senator Tom Coburn did when he did his Ricky Ricardo impression.

SONIA SOTOMAYOR: If I go home, get a gun, come back and shoot you, that may not be legal under New York law-

[LAUGHTER] - because you would have alternative ways to defend –

[BOTH AT ONCE] SENATOR TOM COBURN: You’ll have lots of ‘splainin’ to do.

[LAUGHTER]

BOB GARFIELD: What’s going on here, with the senator and with me?

DHALIA LITHWICK: [LAUGHS] We're all so busy not talking about race that we're thinking about race. I mean, what this whole hearing was, was a public referendum on race in America and how you balance diversity with equality, and how you balance a colorblind Constitution with a Constitution that affirmatively seeks to make reparations to certain races. These are hard questions, and we're not talking about them but we're all thinking about them. So I'll give you the benefit of the Freudian doubt on this one. It’s really complicated, and we're not moving forward; I think we're moving sideways.

BOB GARFIELD: With the so-called litmus test issues approached only so obliquely and with the nominee demurring on, you know, any question of substance, has the Senate’s advise and consent role been obliterated here? Are we now just talking about a media spectacle, an opportunity for political posturing and showboating?

DHALIA LITHWICK: Well, I think there’s two different interpretations of what that role is. Lindsey Graham went out of his way to say, look, the president won the election, he gets to pick his people. We have to abide by that. The lesson here is win elections. There are other senators who really, really felt that it was absolutely impossible for them to vote for her unless they knew her exact answer to what is the test for whether a gun right is fundamental under the Second Amendment. So I think there is a disparity even among the senators about what the contours of that advise and consent role is. That said, this is a spectacle in which we learn a lot about the parties. I think we learn a lot about what constituents are telling Senator Tom Coburn when they call him on the phone, what they're worried about. And so to that extent, I think it’s a useful exercise. The nominee has nothing to do with that. She could be like a ficus potted in the corner. But to see these people play out these very, very profound questions about how can you be proud of your race and not be some kind of essentialist racist - those are interesting questions and I don't think we talked about it particularly well in this hearing. But watching those anxieties and how they're, they’re voiced and how they're telegraphed, I think that’s a spectacle that’s at least interesting and probably at some level better than not having this conversation at all.

BOB GARFIELD: All right, Dhalia, thank you so much.

DHALIA LITHWICK: Thank you very much for having me.

BOB GARFIELD: Dhalia Lithwick is a senior editor at Slate, where she covers legal issues.