Since President Obama’s announcement that he would nominate federal appellate Judge Sonia Sotomayor to the Supreme Court, much attention has been given to her 2005 remark that the "court of appeals is where policy is made." The conservative Judicial Confirmation Network and others on the right are spotlighting the clip of Sotomayor speaking at Duke Law School.
But what is Sotomayor really saying? It’s true that she immediately interrupted herself, saying jokingly to the panelist next to her, "And I know, I know this is on tape and I should never say that, cause we don’t ‘make law,’ I know." (Laughter) "OK, I know. I’m not promoting it, and I’m not advocating it, I’m — you know. OK." She’s referring to an argument often made by conservatives that liberal judges are "judicial activists" who, rather than sticking to strict interpretations of the Constitution, "make law" from the bench.
Or at least that’s what her joking aside was about. But Sotomayor goes on to elaborate on her "where policy is made" comment in an explanation that is not featured on the conservative Web sites. Here’s the part they show:
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.
And here’s the rest, in which she goes on to explain what she meant:
Sotomayor, continuing: 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much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control.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. You are jumping from one project to another at a million miles an hour in a given day.
We don’t know if this fuller explanation will change anyone’s mind about her, but Sotomayor, who was a district court judge from 1992 to 1998, does give an accurate description of how trial courts function. It’s at the appellate court level that a "strict constructionist" might diverge from Sotomayor. It’s necessary to interpret the law, but as for "looking to how the law is developing" and the "ramifications of this ruling on the next step in the development of the law" — while those considerations sound logical enough to many, there are strong differences of opinion about whether an appellate court ought to consider anything other than the facts and the law before it.
Sotomayor was part of a panel discussion for law school students on judicial clerkships. At the time, she was responding to a question about how a district court clerkship would differ from one in an appellate court. The entire discussion can be viewed on Duke’s Web site.