One of These Things is (Not) Like the Other?

Via Legal Theory Blog, I see that Nelson Lund has posted a review of Philip Hamburger's magisterial (so to speak) book Law and Judicial Duty.  His review can be found here; my own short review, published in Engage, is here.  It's a good read, although I think that by emphasizing what he sees as the fixity of the concept of "judicial duty" rather than its development, Lund may overstate the degree to which we can leap from a conception of judicial duty in the Founding Era, which is where Hamburger's book more or less ends, to a conception of judicial duty in our own age.    

What interests me for present purposes, however, is his introduction.  Lund starts by writing that then-nominee presented herself "as a judge who has never done anything except apply the law to the facts, and never will do anything else."  He says that she maintained this position despite "many speeches and law review articles in which she had articulated a rather different account of what judges do."  He refers here to her now-infamous "wise Latina" speech, in which she says that "there can never be a universal definition of" wisdom, and that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."  Finally, he brings in then-Senator Obama's own statement that "adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a Court," but that in five percent of cases "the critical ingredient [for decision] is supplied by what is in the judge's heart."  As I read him, Lund sees a contradiction between these positions.  But is there one?  Although I think everyone's language is faulty in these quotes, and that Sotomayor certainly tried to finesse her views before the Judiciary Committee, I am less certain that there is a clear and obvious contradiction between these positions.