Sotomayor: Appeals court where "policy is made"

Questions about a statement the high court nominee made at a Duke forum may be the first test she needs to overcome before getting confirmed.

Thanks to our friends at the News & Observer for this tip.

Critics say this statement she made at 2005 forum while explaining the difference between district and appeals court justices shows she'll be a judge who legislates from the bench.

“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,” she said. “And I know, and I know, that this is on tape, and I should never say that. Because we don't ‘make law,' I know.”

The audience laughed.

“OK, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know,” she said to more laughter.

“Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It's interpretation, it's application.”

She is not without her defenders. The former Duke University law professor, who moderated the forum, has already dismissed criticisms over the remark.

“Judge Sotomayor's comment was innocuous and true,” Erwin Chemerinsky, now dean of the University of California-Irvine law school, wrote in an e-mail to The (Raleigh) News & Observer.

“Appellate judges and Supreme Court justices must make choices about the law that include consideration of policy issues. Every first-year law student knows this. I am amazed that anyone is making anything of this comment.”

In a blog post for the New Republic, Chemerinsky writes Sotomayor would be “terrific for the Supreme Court and the future of constitutional law.”

“As a woman, a Latina, a person who has faced a lifelong serious illness (diabetes), and a person who grew up in modest circumstances, Sotomayor brings experiences that are unrepresented or largely absent from the current court. These certainly will influence her rulings and they also may help in the most important task for a Democratic appointee on the current court: persuading Justice Anthony Kennedy, the key swing justice on almost every closely divided issue. Sotomayor's background, as well as her intellect and experience, make her ideally suited for this role.”

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