There's been a lot of talk this week, during the Sotomayor confirmation hearings, about precedent. This is the curious process by which a court, in deciding a case, checks to see what other courts and judges have said about the same or similar issues in the past. Anyone who is studying to become a lawyer can quote mountains of legal precedents, and so it is no surprise a judicial appointee at such a high level (she was a lawyer once, you know) has had her thinking practically saturated with them.

I referred to the idea as a curious concept because, if all you ever do before rendering a ruling is to go see what everyone else has already ruled on the matter, your job has pretty much already been done for you. In this sense, we are operating under a kind of legal peer pressure in which nobody wants to do anything that hasn't been done before. Of course, strictly following precedent is a luxury even the most conformist judge can't afford in real life, not the least because if everybody merely followed precedent (if this were even possible) then there would be no precedent to start with. No--Sooner or later somebody slips up and we get the sense that we are working with a live person with their own opinion, whether it has been 'informed' by precedent or not.

In Ms. Sotomayor's case it is wise to use the issue of precedent as a kind of cover. If you don't want to make waves you'll be sure to be able to say that you were just doing what everybody wanted you to do, or had already done. You'll assure people that you are hardly acting on your own in any discernible way, and that you are a responsible part of the system whose own particular biases cannot be pinned down.

If, on the other hand, you want to gain attention, the best way to do it is buck precedent. People will love you, or they'll hate you, in large quantities all around, but your visibility will command attention. I bring all this up because we have the same thing in music. Art music, anyway.