Some legal experts predicted gay marriage would be a hot topic during Sonia Sotomayor's confirmation hearings, considering the handful of states that have adopted laws allowing it in some form and the California Supreme Court's recent ruling against a challenge to its ban on gay marriage. But until today, only Sen. Charles Grassley, R-Iowa, had mentioned the issue at all.

This morning, Sen. Lindsey Graham, S-C., argued that the high court has become more instrumental in social issues, taking cases that decide "who should get married." He went on to say that "people now understand the role of the court in modern society when it comes to social change. That's why we fight so hard to put people on the court who see the world like us." But this was more an assertion than a question; the senator didn't ask Sotomayor specifically about marriage or the court's role in it.

Sen. John Cornyn, R-Texas, then brought up the issue during his questioning, but he stressed he did so only to address his concern about a speech in which he said Sotomayor implied that judges can make policy. "If the Supreme Court holds that there is a right to same-sex marriage, would that be interpreting the law or would that be making the law?" Cornyn asked.

The nominee, as could be expected, deflected the question. "I understand the seriousness of this question," Sotomayor conceded. "I understand the seriousness of same-sex marriage. It's being hotly debated, debated in various courts on the state level. This is the type of situation where even the characterizing of whatever the court may do one way or another suggests that I have prejudged an issue and that I come to that issue with my own personal thoughts."

Later, Grassley also repeated his question from yesterday about whether the Baker v. Nelson ruling prevented the federal government from overruling the states in marriage cases. Sotomayor again demurred, saying that the question was pending in the courts.