‘Where policy is made’

‘WHERE POLICY IS MADE’…. It seems a little premature to start attacking individual quotes from a judge who might be considered for the Supreme Court. After a nominee is announced, scrutinize away. But before then, it’s very likely a pointless exercise.

That said, one of the right’s overheated criticisms of Judge Sonia Sotomayor, rumored to be a contender for the high court, speaks to a larger point of confusion among conservatives about the judiciary.

There’s a video of Sotomayor speaking at Duke University Law School four years ago in which the judge said appeals courts are “where policy is made.” Conservative activists and Republican senators have seized on those four words as evidence of “judicial activism.” After all, they argue, “policy” shouldn’t be “made” in the courts; it should come from the legislative process. To do otherwise, the theory goes, is to “legislate from the bench.”

I have no idea whether Sotomayor will get the nomination or whether these four words will influence the process, but A.L. did a nice job explaining why the Republicans’ argument is misguided.

The entire video clip can be found here. The context, as Orin Kerr helpfully explains in this post, is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don’t just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it’s overruled by the Supreme Court (which is rare).

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear…. But in Simplistic Republican World, none of this actually happens. Good conservative judges don’t “make policy,” they simply enforce the law. The law is apparently always clear. Indeed it’s a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply “enforce the law” (because they wouldn’t dream of “making policy”), so the outcome should be very predictable.

I realize the right is on hair-trigger alert over this Supreme Court vacancy, and many are probably laying the groundwork now for future attacks, so they’ll be more effective when the nomination is made.

But Sotomayor’s quote is just common sense about how the appeals courts function. If she’s chosen to succeed Souter, and the right is looking for something to freak out over, they’ll need to look elsewhere.