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Elena Kagan: Would she turn Supreme Court into We the People?

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Yet when it came time for Sotomayor to defend her speech, she repeatedly demurred, casting herself as a strict constructionist on the Constitution's text and history.

Unseized upon by either side in the Sotomayor hearings was her comment in the same "wise Latina" speech that "Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects." Indeed, his personal experience with affirmative action left him feeling as if he'd been stamped with a "badge of inferiority," as he put it in a 1995 opinion. To this day, according to his autobiography, his Yale diploma, upon which he placed a sticker reading "15¢," sits in his basement.

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But diversity as simply an aesthetic versus experience that comes to bear in interpreting the law will not disappear. It affects every potential next "first" on the court – such as the first Asian-American, the first gay, or the first atheist.

But are identity politics antithetical to an independent judiciary?

"The court is not a representative body, and it's not clear its function is to be a representative body in any way," says Barry Friedman, vice dean of the New York University Law School in New York City and author of "The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution." However, Mr. Friedman concedes, "in deciding legal questions, it does become important for the court's long-term credibility to reach conclusions that are acceptable to the American people."

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