Perhaps the most remarkable exchange during the Senate Judiciary Committee’s hearing came on Tuesday, when President Obama’s nominee flatly repudiated his judicial philosophy.

This is all the more striking because it’s a good bet that the Obama team knew it was coming. White House lawyers spent days prepping Judge Sonia Sotomayor for the hearings, and it was quite predictable that she would be asked about Obama’s "empathy" criterion for choosing nominees.

Indeed, I wonder whether the Obama team itself may even have suggested to the nominee that rejecting the Obama philosophy — as well as disavowing the apparent meaning of her years of "wise Latina woman" speeches — would be the best way out of a tight spot, for reasons explained below.

Sotomayor’s three days of "I just apply law to facts" testimony may evidence a tacit recognition by smart liberals such as Obama and Sotomayor that the American public is either too unsophisticated or too sensible — take your pick — to buy the undiluted liberal judicial philosophy that pervades her speeches, and his.

The predictable question came from Sen. Jon Kyl, R-Ariz., who asked whether Judge Sotomayor agreed with Obama’s repeated assertions that "the critical ingredient in [hard] cases is supplied by what is in the judge’s heart," including empathy for the powerless.

Sotomayor’s stunning response: "No, sir. That’s — I don’t — I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is, judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law."

Wow. Has anyone ever before delivered such a sharp rebuff to the president who nominated her? And on national television, no less?

(White House press secretary Robert Gibbs later told reporters that "the president is not troubled" by his nominee’s testimony.)

And has any Democratic nominee ever rejected so clearly the "living Constitution" vision championed by the liberal legal establishment — while appearing to embrace the conservative dogma that judges must be strictly bound by the Constitution’s text?

"Do you believe the Constitution is a living, breathing, evolving document?" asked Sen. Lindsey Graham, R-S.C.

Sotomayor’s response: "The Constitution is a document that is immutable to the sense that it’s lasted 200 years. The Constitution has not changed except by amendment. … It doesn’t live other than to be timeless by the expression of what it says. What changes is society."

This, and similar answers, caused understandable lamentation in the liberal legal establishment, some of it quoted by Jan Crawford Greenburg of ABC News in her perceptive "Legalities" blog.

What’s going on here?

My speculation: The White House knew that the most dangerous ammunition in the hands of Sotomayor’s critics was not her 17-year judicial record — mostly mainstream and devoid of adventurous theorizing — but rather her years of "wise Latina" speeches, the tenor of which resonates with Obama’s "empathy" theme.

Sotomayor’s speeches, although somewhat muddled and ambiguous, question the possibility and even appear to deprecate the importance of judicial impartiality, which she called a mere "aspiration" and discussed with far less enthusiasm than she did "my Latina identity… and the influence I perceive it has on my presence on the bench." More famously, she suggested repeatedly that a "wise Latina woman" would make a "better" judge than a white male. In at least one speech, in 1994, she specified that "better" meant "more compassionate and caring."

The Sotomayor speeches have much in common with Obama’s judicial philosophy, as expounded in statements such as his assertion two years ago this month that "the criterion by which I’ll be selecting my judges" was "who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old."

The White House team preparing Sotomayor knew that she had two basic options for handling questions about her speeches and the president’s assertions.

She could embrace and elaborate on the apparent import of her speeches. Or she could resort to implausible disclaimers — like those quoted in my July 17 column — that she did not mean what her speeches seem to say.

In choosing the latter course, Sotomayor added an exclamation point by repudiating Obama’s judicial philosophy.

This approach disarmed Republican senators to some extent. But it also earned Sotomayor harsh criticism from some liberals (as noted above), as well as from conservative critics such as Ed Whelan of the Ethics and Public Policy Center. He wrote in National Review Online:

Judge Sotomayor deserves an A+ for brazen doublespeak. She emphatically rejected the lawless ’empathy’ standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality. She hid behind a ridiculously simplistic caricature of judging that embarrassed and disgusted her most vociferous backers, but she never recognized any meaningful bounds on the role of a Supreme Court justice. She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago.

Added conservative law professor Jonathan Adler, of Case Western Reserve University Law School, in a Washington Post commentary:

Sonia Sotomayor has started to sound more like the sort of nominee we would have expected from a President McCain than a President Obama…. It is almost as if she and her White House handlers believe that a more forthright explication of a liberal judicial philosophy — a philosophy like that articulated in her speeches and defended by the president — would pose an obstacle to her confirmation. If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal… does this mean there is little political support for a progressive constitutional vision?

If so, some liberal commentators suggest, it just goes to show that voters cannot be expected to understand why the progressive constitutional vision is good for them, and why many conservatives are too simplistic in denying that subjectivity in judicial interpretation of ambiguous texts is inevitable.

"The judge’s full retreat from the notion that a different life experience is valuable was more than necessary and somewhat disappointing," wrote Maureen Dowd in the New York Times. "But, as any clever job applicant knows, you must obscure as well as reveal, so she sidestepped the dreaded empathy questions — even though that’s why the president wants her."

Perhaps the most poignant comment on Obama’s "empathy" criterion was that of Ben Vargas, the lone Hispanic among the 18 New Haven, Conn., firefighters whose discrimination lawsuit Sotomayor famously spurned.

In testimony on Thursday, Vargas — who is, like Sotomayor, of Puerto Rican ancestry — began by congratulating her and saying, "I am Hispanic and proud of the heritage and background that Judge Sotomayor and I share." He went on to describe the sacrifices he had made, including less time with his three sons, to study for the promotional exam whose results the city rejected on account of race.

"We did not ask for sympathy or empathy," Vargas said, paraphrasing a passage from Justice Samuel Alito’s opinion in his case. "We asked only for evenhanded enforcement of the law, and… we were denied just that."