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.