Anticipating one of the talking points

ANTICIPATING ONE OF THE TALKING POINTS…. We’re still about 15 minutes away from the formal introduction of Judge Sonia Sotomayor as the president’s nominee for the Supreme Court, but one of the central criticisms against her in recent weeks is likely to come up again and again during the confirmation process.

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.”

Reiterating a post from a few weeks ago, it’s worth knocking this down. A.L. did a nice job explaining why the 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.

Sotomayor will no doubt face all kinds of criticisms, and some may be more persuasive than others. This one is just silly.