As my fellow blogger Mark Memmott noted earlier, some conservative critics of Sonia Sotomayor are using a clip of her participation in February 2005 on a Duke University Law School panel. She was explaining the difference between clerking for district and and appellate court judges:
Um, all of the legal defense funds out there, um, they're looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don't make law, I know. Um, um -- [laughter] -- I know. I'm not promoting it, I'm not advocating it, and, I'm ... you know.
Her conservatives critics are hoping to gain traction on this. Their argument is that her off-hand comment proves she's an unreconstructed proponent of judicial activism.
Ed Morrissey of the conservative Hot Air blog wrote:
If she's that erudite in front of the Senate Judiciary Committee when answering this question, the Republicans won't have to push hard to bounce Sotomayor out of the Supreme Court. She knew she'd overreached and couldn't even explain herself in front of a friendly audience, who realized quite well that her backpedaling was entirely self-serving and incoherent.
But watch the somewhat longer clip of the same panel discussion and it appears Sotomayor did indeed explain herself in a way that will likely hold up under tough questioning from Senate Judiciary Committee Republicans. Morrissey's smoking gun turns out to be anything but.
Heres' a transcript of the lengthier clip:
SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.
So it appears she was saying if you're a young lawyer who really wants to understand how the law is evolving and how it's being applied across a broad category of cases, you'd be better off clerking for an appellate judge instead of a district court judge.
When the law is uncertain in a given area and a relevant case reaches an appellate court, especially when a federal agency is involved, then that court's interpretation becomes a precedent and the equivalent of policy.
Media Matters, the liberal watchdog organization, has a good post that explains this.
Indeed, the Oxford Companion to the Supreme Court of the United States (2005) notes that federal appellate courts do, in fact, have a "policy-making" role:
The courts of appeals have also gained prominence because of the substance of their caseload. For their first twenty-five years, these courts dealt primarily with private law appeals. Diversity cases (suits between citizens of different states), bankruptcy, patent, and admiralty cases made up most of their work. However, as federal regulation increased, first during the Progressive Era, then during the New Deal, and finally during the 1960s and 1970s, the role of the courts of appeals changed as appeals from federal administrative agencies became a larger part of their caseload. Other developments that increased these courts' policy-making importance were the increased scope of federal prosecutions, especially those dealing with civil rights, drugs, racketeering, and political corruption, increased private litigation over various types of discrimination; and litigation concerning aliens' attempts to gain political asylum. Also adding to their importance were their post-1954 use to oversee school desegregation and reform of state institutions such as prisons and mental hospitals, along with controversies like that over abortion.
Thus, Sotomayor was arguably stating a matter of fact, not opinion or ideology when she said appeals courts often make policy.
When she backed off the comment, it was clearly done in a tongue -in-cheek way as she obliquely acknowledged the fiction judges must maintain to save themselves the trouble of being branded as "activist judges."
She was also metaphorically winking and nodding to an audience that obviously got the joke based on its response. She and her listeners knew the whole policy thing would be controversial in some quarters.
Turns out, they were right.