If Obama was trying to reorient the tone of contemporary Supreme Court jurisprudence by mentioning empathy and nominating Sotomayor to the bench, he failed. If anything, Sotomayor’s confirmation process has cemented a strict, restrained way of judging into the public consciousness. The liberals may have won the nomination, but the rhetoric of confirmation remains conservative. Answers to substantive questions have become predictable, stale and largely meaningless as nominees have learned to avoid controversy by saying very little and placate fears of activism by adopting a restrained, deferential persona. Above all else a nominee wants to be confirmed, and the conservative script is the most assured way of doing so, apparently even when the Democrats control the Senate. But the confirmation process ultimately contributes to a troubling perspective of the judge’s role in the law-making system.

Originalism, the idea that the meaning of the Constitution was fixed at the moment of ratification, has gained tremendous ground over the past few decades with the support of the Federalist Society and the Supreme Court’s sharp-tongued conservative advocate Antonin Scalia. Its close cousin, textualism, maintains that the interpretation of statutory law should rely solely on the words of the law itself, and not, for example, the intent of the legislators or other considerations. As principles of judicial restraint, I applaud them, but like the confirmation process itself, both doctrines posit a world where judges act as automatons when applying law.

The world and the legal system are in a perpetual state of non-equilibrium, and lawmakers have an extraordinarily difficult time dealing with this fact. First, every law interacts with every other law in a given legal infrastructure. While lawmakers do investigate the most obvious legal interactions before presenting and pushing for a bill, they don’t have the foresight or the time to research and plan for all of them. Nor would we want them to: many potential problems never come to pass, and it would waste Capitol Hill’s already strained resources.

Second, predicting the future is difficult and oftentimes impossible. Lawmakers cannot know how a law they pass now will interact with a social and legal structure 15 years from now. But judges 15 years from now can know. And they can craft intelligent and practical solutions. We can ask that these solutions minimally depart from original meanings or understandings, but we can’t ask judges to abdicate their duties. Unfortunately originalism, particularly in its more extreme forms, presumes the world is a static, unchanging place.

The fact is: I want activist judges. I don’t want judges who replace the rule of law with their own ideas about what the law should be and I don’t know anyone who does. But I do want judges who are sensitive to their role in the larger legal infrastructure. By and large, judges act like they understand this, even when they don’t say so explicitly. In widely circulated remarks before her nomination, Sotomayor prefaced her rather bland pronouncement that judges make law by cheekily noting it was a dirty secret that no one should talk about. A number of journalists labeled the remarks controversial, even while the “wise Latina” remarks got more play.

Even more disturbing, Sotomayor explicitly denied the role empathy and life experience play in judgment (“We have to recognize those feelings, and put them aside.”). Not only does this paint a hopelessly dualistic picture of the human psyche, but it also presumes that we can put aside those feelings. Her comments amount to: “we are not robots; we just have to act like them.” Many scholars now consider originalism to have won the ideological war, but a note from Oliver Holmes shows just how far American jurisprudence has drifted: “The life of the law has not been logic: it has been experience.”

So long as successful appointment requires the rhetoric of self-denial, the confirmation process will continue to support originalist thinking, foster erroneous perceptions about the act of judging and be a spectacular act of non-discovery. But who wants to risk non-confirmation or to become a martyr to reinvigorate the process? For the time being, the nomination and confirmation process is stuck in a self-perpetuating cycle — to our detriment.

Benjamin Keep, a third-year law student at Cornell, administers Barely Legal, a column featuring a rotating cast of law students that appears alternate Fridays this semester. He may be reached at bkeep@cornellsun.com