May 29th, 2009
06:14 PM ET
5 years ago

In her own words: Sotomayor's 'policy is made' comment in depth

In 2005, Sotomayor said that 'policy is made' in the U.S. Court of Appeals.
In 2005, Sotomayor said that 'policy is made' in the U.S. Court of Appeals.

WASHINGTON (CNN) – Critics of Supreme Court nominee Sonia Sotomayor often cite a comment the federal judge made in 2005 that the U.S. Court of Appeals, where she has served since 1998, "is where policy is made."

Sotomayor made the statement at the Duke University School of Law during a panel discussion with other federal judges on judicial clerkships. The purpose of the event was to encourage the law students in attendance to pursue judicial clerkships during their legal careers. According to the panel moderator, the judges would be asked to describe "what it is their clerks do, what the relationship between the judge and the clerk is like, … different kinds of clerkships, maybe at the trial court level and at the court of appeals level, how those differ and maybe a little bit about the selection process."

The "policy is made" comment came near the end of the 51-minute discussion, when a student asked the panel to describe the differences between district court clerkships and those at the appeals court level, also known as the circuit court level.

A small portion of the student's question was inaudible, and those sections are marked in brackets. Also serving on the panel with Sotomayor were Judges Carlos Lucero and Robert Henry, both from the 10th Circuit Court of Appeals. A video of the full panel discussion, held February 25, 2005, can be seen on the Duke University School of Law Web site.

(The full text and time codes of the exchange are provided after the jump)

LAW STUDENT (39:55): Just jumping off of that, one of the things I'm hashing about in my head is [inaudible] district or [inaudible] appellate, and what, could you speak to that, being a federal, a former district clerk [inaudible] a former district judge, compare and contrast a little bit for us what the experience is like.

JUDGE CARLOS LUCERO, 10TH CIRCUIT COURT OF APPEALS (40:12): I think that the district court clerk and the circuit court clerk really do substantially similar work, but the work is worlds apart. As a district court clerk, we're in the middle of a trial. A motion is filed during the litigation. The judge has to rule on it the next morning. He's taken it under advisement, and the clerk is asked to do a memo that night on the evidentiary issue involved. It's a quick but thorough memo. The next day, a clerk in some other city, the judge may ask for a memo on a motion for summary judgment, and the motion is very fact-dependent. It requires going through a lot of the supporting affidavits in support of a motion, and the judge wants a summary of the evidentiary issues presented. She might want that tomorrow, or she may want it a week later, and the clerk has to prepare that memo. The circuit clerk, on the other hand, is going to look at the issue somewhat more abstractly, and how in the context of 30 cases will our ruling on this particular motion impact other cases coming before the court, and so you can see that the focus immediately is somewhat more global in its application or as the district court clerk's responsibility is kind of more case-dependent, fact-dependent to that particular case.

If you're going into litigation, I think that the district court clerkships are far superior to the circuit court clerkships in the sense that the circuit court's only exposure to the litigation is by reading the cold record. The district court clerk has been there, done that. Watched the good lawyers, watched the great lawyers, watched the mediocre lawyers, and all the while, during a year of exposure to the practices, is learning how not to do it as well as how to do it. On the other hand, for the circuit court clerks, those clerks generally tend to gravitate a little bit more to the academy, a little bit more to the public policy side of things, and they too play an important role. I am not here to judge as between the two experiences. I think it really depends on what you want out of your career. In your heart of hearts, you really want to be that crack litigator, the crack prosecutor, the crack, not the crack public defender [laughter] but the hotshot in any of those departments, I think that district court clerkship is right where I would go.

JUDGE SONIA SOTOMAYOR, 2nd CIRCUIT COURT OF APPEALS (43:15): I, from my answer earlier, doing either is going to get you a whole lot. So, you don't make a mistake in whatever choice you make. But there is a choice. The saw is that if you're going into academia, if you're going to teach, or Judge Lucero just said public interest law. 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. 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] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [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. And Judge Lucero's right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case, so you're looking much more to the facts of the case than you are to the application of the law. Because the application of the law is non-precedential, so the facts control. On the Court of Appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. So you are always thinking about the ramifications of this ruling on the next step in the development of the law.

You can make a choice and say, I don't care about the next step, and sometimes we do. Or sometimes we say, we'll worry about that when we get to it. Look at what the Supreme Court just did. But the point is that that's the differences. The practical differences in the two experiences are, the district court is controlled chaos. And not so controlled most of the time. You are jumping from one project to another at a million miles an hour on a given day. I explained to one of my friends that after a day in the district court, I actually didn't have a headache, I had a head strain. My brain in my first year felt that it had expanded past its capacity of the muscle to stretch. [laughter] There was so much an influx of information and new knowledge that I literally had a headache.

LUCERO: Don't hold her too responsible on physiological matters. [laughter]

SOTOMAYOR: At any rate, you jump from one emergency to another. By definition you can't ever pay enough attention to anything, like you would like, and you have to move quickly. If you have a personality where you can do that, it's stimulating beyond belief. I have had law clerks when I was a district court judge for whom that process was just shattering because their ability to respond quickly was limited. You have to look within yourself and see if you can do it. Because if you can't, it can be a horrifically draining experience. The Court of Appeals is more contemplative, so that you have more time to think, and you have to think more deeply. But with it comes the requirement of thinking on levels, on multi-levels, at a time, and some people are not suited to that either. Some people like a more direct, linear process and the district court is better for that. As I said, there's no right and wrong other than your choice. You're sort of looking at yourself seeing where your personality fits and thinking about your career choices and seeing which might be better. Now you could do both. So, but that's not so easy either.


Filed under: Sonia Sotomayor • Supreme Court
soundoff (81 Responses)
  1. willow

    I give up. It doesn't matter what anyone thinks but O'bama anyway so why do people even bother stating their opinions? He will overrule no matter what anyone else has to say. I have had experiences in my life that she hasn't had; would that make me a better choice than her? We ALL have different life experiences and that shouldn't be the sole reason to hire someone.

    May 29, 2009 06:37 pm at 6:37 pm |
  2. Republican from Alerbami

    Shes a great choice.I better check with Rush and see if I was supposed to say that.

    May 29, 2009 06:41 pm at 6:41 pm |
  3. No Incumbents 2010

    Tomorrows headline: WH calls Sotomayor's wording poor... AGAIN

    May 29, 2009 06:42 pm at 6:42 pm |
  4. Steve

    Gosh, CNN. Don't you know that providing context is a liberal plot?

    May 29, 2009 06:45 pm at 6:45 pm |
  5. once upon a horse

    @ willow....
    from reading your statement it really would not have mattered WHO he picked, you would not have liked them anyway. You can tell a far right Republican because you all think and sound alike. Which is why you guys have a 33% aprroval rating nationally by the way.

    May 29, 2009 06:48 pm at 6:48 pm |
  6. arithmetic is liberal

    willow May 29th, 2009 6:37 pm ET

    I give up. It doesn't matter what anyone thinks but O'bama anyway so why do people even bother stating their opinions? He will overrule no matter what anyone else has to say.

    You mean an increasingly shrinking minority of the self-important that can't get over the fact that their party is out of power?


    I have had experiences in my life that she hasn't had; would that make me a better choice than her? We ALL have different life experiences and that shouldn't be the sole reason to hire someone.

    Think about an ice cream store. Do you want to experience the awesome taste of vanilla every time? Or do you get a better experience from ice cream if you also have other flavors occasionally like strawberry cheesecake, coffee, and fudge brownie? Sure, we all have different experiences. But so far, there have been one hundred and eleven people on the Supreme Court, and they are comprised of 102 White Protestant Anglo-Saxon Males, a few Jewish folk, a couple women, and two black guys. So that's 102 white male experiences and one Hispanic one. Yes, we need her differing experience.

    May 29, 2009 06:50 pm at 6:50 pm |
  7. Michael

    When read in context with the rest of her answer to this question, I consider this whole "policy" discussion to be little more than a tempest in a right-wing teapot. I see now what she was saying about the different mind set there is between deliberations at the district court level and those at the appeals level. And I can't say that I see anything at all wrong with her answer and also think she is in no way promoting some kind of nefarious "activist" (whatever that is) agenda. So, simmer down folks......much ado about nothing.

    May 29, 2009 06:50 pm at 6:50 pm |
  8. babs

    @ once upon a horse

    You're right. Willow and people like that start slamming Obama before they even know what the issue is. "poor me, Obama ruined my life..."
    Fix your own party and put up an idea that's not just a list of things we CAN'T do.

    May 29, 2009 06:54 pm at 6:54 pm |
  9. Kevin Bl

    Don't give up, go to law school, then work your arse off like she did. Her comment was about certain types of decisions in the past – e.g. decisions the upheld slavery or denied woman the right to vote, well I think that if you were a black judge you might vote against upholding slavery .. don't you think.
    That's the relative context of her statement, not just that her experiences are better or worse.

    Go beyond the stupid sound bites we're being fed and read and dig.

    May 29, 2009 06:55 pm at 6:55 pm |
  10. INDEPENDENT

    Bad choice NEVER FORGET THE INDEPENDENT VOTE.....

    May 29, 2009 06:57 pm at 6:57 pm |
  11. Roger from CA

    Ahhh, the trolls just eat this stuff up. Sad, how these wingnuts just explode over the least, innocent comment.

    Got news for you: in a world where the elected politicians are a bunch of gutless wonders who "punt" on legislating the important nuances of hard issues, it is–UNAPOLOGETICALLY–the role of the courts to "make policy" or "make law" or whatever the wingnuts want to call it.

    When there are holes in the statutes big enough to fly an Airbus through, it is the PROPER function of the judiciary to fill in those holes. And these judges (as a general rule) actually bend over backwards trying to divine what should go into those holes, applying precedent, general rules of jurisprudence and the like–FAR from cooking up crazy rules out of their own inclinations, prejudices or agendas. It is called the interpretation of the law.

    May 29, 2009 06:57 pm at 6:57 pm |
  12. Jon

    Those who believe that judges can be 100% objective all the time live in a place known as the Magical World of Make-believe.

    May 29, 2009 06:58 pm at 6:58 pm |
  13. arithmetic is liberal

    Also –

    For those who are thinking that this is an "affirmative action" pick...

    She graduated second in her class at Princeton and was president of the Princeton Law Review. She did it by rising up from the level of impoverished immigrant, and fought her way ot the top. If that isn't the American story, I don't know what is. But the Buchanans of the world can only see her skin and start crying about affirmative action.

    Maybe white people should look to the real culprit of the softening of their power structure: nepotism. Maybe if white people didn't hire their college drop out second cousins to take care of the shop because they're "connected" they would still be at the top of the crop instead of fielding the D-list presidential candidates, CEOs and bankers.

    I have far more respect for those who rise faster, quicker, from harder circumstances than those who are protecting a "legacy".

    May 29, 2009 07:00 pm at 7:00 pm |
  14. mike

    What about all the garbage Rush Has said over the years!
    Rush is a racist, and look at how the GOP loves him!

    Search Rush Top 10 Racist Remarks!

    SHAMEFUL!

    He Needs To Shut Up!

    May 29, 2009 07:01 pm at 7:01 pm |
  15. Bob

    She is a very intelligent, accomplished woman. The people that knock her do so only with sentence fragments, and do not present the entirety of what she is saying. If the GOP can't present the whole truth when making their case, then it isn't based on the truth at all.

    May 29, 2009 07:04 pm at 7:04 pm |
  16. Justin

    lets pick through the speeches by all the judges, lawyers, politicians, and media talking heads and pull out the two worst things we can find.... I guarentee we will find far far worse statements than these. Taken in context they are not nearly as bad as fearmongers would have you think, and a little more troubling than the rose colored glasses folk want you to believe.

    May 29, 2009 07:06 pm at 7:06 pm |
  17. Ray Fisher

    Courts make law by selectively enforcing law in their courts and is what she was alluding which is an unannounced fact of the power of the courts. America must enforce all laws regardess of any judge's personal opinions else they must be disbarred.

    May 29, 2009 07:08 pm at 7:08 pm |
  18. Objective Thinking

    arithmetic is liberal: Your line of thinking assumes that a person's race should matter. It should not.

    May 29, 2009 07:08 pm at 7:08 pm |
  19. Rich, Englewood, NJ

    Willow: her life experiences were not the "sole reason" to hire her. There are dozens of appeals court judges with years of experience and top-notch academic credentials. Any of them could have been nominated and the intellectual quality of the court would be the same.

    But since life experiences do affect perspectives, isn't it better to have a Supreme Court where nine justices of DIFFERENT backgrounds can look at a case? There have been 110 justices in the history of the Supreme Court. 106 of the 110 have been white males. That means that our laws, which are supposed to be applied equally to all, have almost entirely been interpreted by one subgroup of Americans.

    May 29, 2009 07:08 pm at 7:08 pm |
  20. Mari( maybe one of my comments will be posted)

    Wonder how many folks have actually read her opinions or statements?
    I have read a bit, but not all.

    I realize that every president will choose their SCOTUS nominee based on his/her ideology and agenda....... Reagan, Bush I & II all did it.

    Why so much angst and name calling from the GOPers?

    The name calling is what really offends, considering that as a Latina, myself I have experienced prejudice.

    Once again Limbaugh the comedian proves that he indeed is the leader of the GOP. Wow........ that will really get lots of votes for the GOP come 2010 & 2012!

    May 29, 2009 07:10 pm at 7:10 pm |
  21. ryan

    Democrats are as unable to criticize Obama nominees as Republicans were for Bush nominees'. The responses to this article are a perfect example of this.

    That is why being liberal or conservative is flat out stupid. You surrender the ability to think for yourself once you become an ideologue.

    May 29, 2009 07:10 pm at 7:10 pm |
  22. nyc homeless conservative

    She does not even qualify to sit on a jury with her prejudice

    May 29, 2009 07:14 pm at 7:14 pm |
  23. Lynn

    Willow: wouldn't that be true of any president's pick...elections have consequences and to say that was the sole reason for this pick is a sure sign of your ignorance of her full body of work and experience.

    Also to attack someone without her hearings before the Senate seems very anti American.

    May 29, 2009 07:14 pm at 7:14 pm |
  24. Sniffit

    Here's me not being biased: My fellow libs need to cut the crap with the ethnicitiy and gender thing. If you want women and different races to be considered on the merits..i.e., education, experience, training, qualifications, etc...then you cannot have your cake an eat it too with these attempts turn gender and ethnicity into merits. They are NOT merits, just as they are NOT demerits. Sotomayor should be considered SOLELY on the basis of her education, experience, training, decision history, judicial philosophy, etc. etc., and her gender and ethnicity should not even be considered a valid topic of discussion whatsoever. Sure, everyone recognizes that different people, different upbringings, different cultural experiences all go into forming a person's perception of the world around them, but such intangible, unmeasurable, subjective things cannot be quantified and so should not be considered.

    So, that being said, you also play right into the GOP's nonsense by bringing up her gender and ethnicity as merits...just as they're trying to turn it all around and call her a reverse racist, etc., because they know they can't win on the real issue. Stay focused and do no fight the battle on the field of their choosing. Once you open the door to gender and race being an issue, then they're fair game. If you accept them as a red herring, because what you're truly arguing for is equality and gender/race-blind consideration of the candidate, then the GOP can't talk about it without looking (even more) stupid.

    May 29, 2009 07:15 pm at 7:15 pm |
  25. Jacque Bauer

    Soto clearly has no idea about the role of the courts and the Constitution. She is completely unqualified and an embarrassment to other much more qualified Hispanics. Dems believe that any minority that is conservative must be personally destroyed at all costs (Estrada, Gonzales, Thomas, Rice, etal...). The Democrat Party is the racist party, isn't that right Mr. KKK Byrd??

    May 29, 2009 07:16 pm at 7:16 pm |
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