May 26th, 2009
10:38 AM ET
12 months ago

Sotomayor: 'Policy is made' at Appeals Court

WASHINGTON (CNN) – An offhand comment that Judge Sonia Sotomayor made to a group of law students in 2005 will likely help fuel conservative opposition to her nomination to the Supreme Court.

At a Duke University panel discussion held in February 2005, the federal appeals court judge and President Obama's choice to replace retiring Justice David Souter told a group of law school students that the U.S. Court of Appeals "is where policy is made."

She made the comment in response to a question from a student on the differences between working at the federal appeals court as opposed to the district court. The New York judge said that traditionally, those interested in academia, policy, and public interest law tend to seek appeals court clerkships.

"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. [Laughter from audience] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [More laughter] 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."

Conservative activists have a long criticized so-called "judicial activists," who use their position on bench to make public policy. President Obama, in announcing his pick Tuesday morning, said that one of the reasons he selected Sotomayor was her "understanding that a judge's job is to interpret, not make law."

– CNN's Martina Stewart contributed to this report.


Filed under: Sonia Sotomayor • Supreme Court
soundoff (47 Responses)
  1. Jeanne

    The entire country should be outraged at this nominee. She should never have been considered based on this comment. Once again, this demonstrates the total disregard and disdain this administration has for our country and constitution.

    May 26, 2009 11:40 am at 11:40 am |
  2. R in Maine

    Good for you Sonja. Stomp those fascists.

    May 26, 2009 11:45 am at 11:45 am |
  3. New Yorker

    Obama is just trying to further his agenda.It is clear that Sotomayor is on the same path as him of turning this nation into what the constitution and founding fathers never intended, and that is, a nation governed by the government for the government with the peoples' tax-dollars.

    May 26, 2009 11:48 am at 11:48 am |
  4. Steph

    I strongly approve of President Obama's choice. She has a long track record of being a moderate, and she will serve ALL of us well.

    May 26, 2009 11:49 am at 11:49 am |
  5. Steph

    Here is the important part of the quote, "Because we don't make law"! Stop trying to misinterpret everything this very qualified person says...please pay attention to the entire quote. You right-wing folks who have to oppose everything are beginning to grate on my last nerve. You got your freak Roberts, now let a highly qualified person get a fair confirmation hearing.

    May 26, 2009 11:53 am at 11:53 am |
  6. aliousalam

    well, a lot of politics nominates justices. so their opinion and the law are made out of the nominations they receive. No nomination, no justice seat.

    Thank you notes take several forms.

    May 26, 2009 11:55 am at 11:55 am |
  7. Joe the Troll

    Why do people think their called JUDGES? They don't just judge the defendants – the juries are for that. They judge the value of the law as it applies to the situation. If they just read decisions and sentances out of books, all we'd need are the books.

    May 26, 2009 11:55 am at 11:55 am |
  8. John

    Kevin and CJ,
    Look at the context of the comment. She is comparing the District Court to Appeals Court. She is not talking about taking over the Congress or Executive Branch.

    You guys never cried "Strict Constructionism" when Samuel Alito was questioned about his theories of the "Unitary Executive"

    The GOP is full of Baloney and everyone knows it.

    May 26, 2009 11:57 am at 11:57 am |
  9. Glennis

    This woman has the wrong idea of what her role is in the judiciary. her role is not to enact law, or make policy as she puts it, but to interpret law. She is not fit for the Supreme Court. However, it won't surprise me when Obama tries to pack the court with people who will bend and mend the Constitution to suit the leftist ideologies he espouses.

    May 26, 2009 11:57 am at 11:57 am |
  10. Joe the Troll

    "Admittedly, I am just the product of a southeastern US public school system, but I seem to recall for my junior high school and high school civics classes that the role of the judiciary is to interpret and apply the law, not to make policy. I would have thought that a nominee for the Supreme Court had a better understanding of the Constitutional authority of the judiciary."

    When law is interpreted and applied, that forms the active part of policy. When a judge strikes a law down as unconstitutional – as they may very properly do – it effects policy.

    It seems that YOU are the one who lacks understanding.

    May 26, 2009 11:58 am at 11:58 am |
  11. Eric

    Again, it's clear who didn't read the entire quote, but only stopped after the first line!

    May 26, 2009 11:58 am at 11:58 am |
  12. Joe the Troll

    "Justice is blind. It doesn't see rank, status, economic or sociological place."

    In a dream world, perhaps. It doesn't work that way in real life.

    May 26, 2009 12:00 pm at 12:00 pm |
  13. Marc

    Party Purity will never bring Political Power! – Look, Mississipi Mike's comments are always so out of touch with reality that id doesn't take a few second of thinking to disconstruct them completely. But the fact that you are an atheist (quite probably) doesn't gives you the right to discredit ANY religious book and use it (whatever it is) as an example of what religion can do (badly) with people. There are lots of good and decent people around the world, and hardly the majority of them is atheist.
    So respect the other's people personnal beliefs, unlike Mississipi Mike usually does, since a 'hollier-than-thou' attitude in a guy that bashes the Christianism the way you did is not only creepy, but discredit any point you might have tried to give...

    May 26, 2009 12:04 pm at 12:04 pm |
  14. Marc

    CNN please do not 'moderate' my posts...

    Party Purity will never bring Political Power! – Look, Mississipi Mike's comments are always so out of touch with reality that id doesn't take a few second of thinking to disconstruct them completely. But the fact that you are an atheist (quite probably) doesn't gives you the right to discredit ANY religious book and use it (whatever it is) as an example of what religion can do (badly) with people. There are lots of good and decent people around the world, and hardly the majority of them is atheist.
    So respect the other's people personnal beliefs, unlike Mississipi Mike usually does, since a 'hollier-than-thou' attitude in a guy that bashes the Christianism the way you did is not only creepy, but discredit any point you might have tried to give...

    May 26, 2009 12:05 pm at 12:05 pm |
  15. Jeff Spangler, Arlington, VA

    As an mature lawyer, I'm sick of hearing the objection that judges cannot make law but must merely apply it. Trial and appellate judges make so-called "interstitial" law every day, either by applying known rules of law to unique sets of facts, or by predicting how a superior court would decide the case based on its precedents where the answer is not clear.

    The brain-dead "originalists" are the most frequent supporters of this narrow view of what judges do, even though their legal training and experience should have shown them that judges _do_ make law and are not necessarily "activists" when they do.

    May 26, 2009 12:08 pm at 12:08 pm |
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