Day 3 of the Sotomayor confirmations was mostly the same-old same-old. But there was one exchange that I found particularly thought-provoking between Senator Tom Coburn (R-OK) and Judge Sonia Sotomayor. I wasn’t sure where Coburn was going with it at first, but you see where he ends up.

Coburn: Does a state legislature have the right, under the Constitution, to determine what is death? Have we statutorily defined, and we have, all 50 states and most of the territories, what is the definition of death. Do you think that’s within the realm of the Constitution, that states can do that?

Sotomayor: It depends on what they’re applying that definition to, and so there are situations in which they might and situations where that definition would or would not have applicability to the dispute before the court. All state action is looked at within the context of what the state is attempting to do and what liabilities it’s imposing.

Coburn: But you would not deny the fact that states do have the right to set up statutes that define, to give guidance to their citizens, what constitutes death.

Sotomayor: As I said, it depends on in what context they are attempting to do that.

Coburn: They’re doing it so they limit the liability of others with regard to that decision, which would inherently be the right of a state legislature as I read the Constitution. You may have a different response to that. Which brings me back to technology again. As recently as six months ago, we now record fetal heartbeats at fourteen days post-conception. We record fetal brainwaves at 39 days post-conception. And I don’t expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues, is we have this schizophrenic rule of the law where we have defined death as the absence of those but refuse to define life as the presence of those. And all of us are dependent at different levels on other people during all stages of our development from the very early in the womb, to outside of the womb, to the very late. And it concerns me that we are so inaccurate — inaccurate’s an improper term — inconsistent in our application of the logic.

Coburn’s argument is simple: if death means the absence of brainwaves and heartbeats, shouldn’t life mean the presence of brainwaves and heartbeats. This struck me because there are so many inconsistencies in the law, so many competing rights and principles. It is in all of this conflict that judges make decisions and settle what the prevailing rule will be. When laws are clear, a judge’s work is easy and even unnecessary. It is when two different laws are at odds with each other that real legal precedent is made, and where different judicial philosophies lead to different outcomes. I was also a Legal Studies major in college, so I find discussions like this fascinating.

And it’s not just the courts that are inconsistent in how they apply logic. I think we’re all guilty of it. I know I am. A few years back there was a story about a woman who delivered a baby in the hospital and when they were doing her blood tests, they found cocaine in her system. After she gave birth, the police took her into custody and placed her under arrest for child endangerment — apparently it’s illegal to do cocaine when you’re pregnant…or at least more illegal than just doing it on your own. I remember thinking that was the just thing to do — there has to be some punishment for a woman knowingly harming the baby inside her womb, possibly causing it to have developmental difficulties that will require taxpayer money. But I consider myself to be pro-choice. I would obviously rather a woman bring a child to term and let a loving family adopt it, but it’s her body and as long as she makes the decision early on and we’re not talking late-term or partial-birth abortion (when the fetus would be viable outside the womb anyway), I would not choose to take away a woman’s right to an abortion.

So consider those two positions and you get this: I have no problem with a woman killing a fetus, but if she just harms it by doing a little drugs instead of killing it completely, then there should be a punishment for her. It sounds perverse, I know, but it’s just another example of the competing principles we have that sometimes butt up against each other. There is also tension between the guarantee of equal protection for all people under the law regardless of race and gender and the sanctioning of affirmative action. There is tension between the first amendment’s right to say anything you want and the right to privacy of others — illustrated quite well by the jackasses who protest funerals of soldiers yelling god-awful things at the family of the deceased. It is hard to have a set of strong principles that don’t at some point conflict with each other.

I know these hearings have been boring at times. There’s no doubt about that. When you get to the fifth Republican senator asking yet again about the “wise Latina woman” comment or the tenth Democrat senator talking about how simply wonderful this woman is (I seriously think Feinstein wants to adopt her), you can’t help but want to just turn it off. But I keep watching anyway because you never know when a discussion like this is going to come up.