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. The Marginalizer

    One can only hope she feels Gay Americans are equal Americans.

    May 29, 2009 07:17 pm at 7:17 pm |
  2. Mary

    Willow writes: "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"

    Sotomayor is being chosen not simply for her life experiences, but for her wealth of judicial experience. She is an extremely qualified candidate first and foremost, with the added benefit of being able to make SCOTUS a more representative body of the citzenry it serves.

    Its a shame so many conservatives are unable to see this canddate's education, experience and qualifications objectively. She is an excellent choice.

    May 29, 2009 07:17 pm at 7:17 pm |
  3. D. Tree

    Look people, the Framers envisioned a government of 3 co-equal branches OK?

    All this talk about "activist" judges is nonsense – Republicans use that as a code word for not being conservative enough.

    May 29, 2009 07:17 pm at 7:17 pm |
  4. Sniffit

    @ Jon

    Indeed...I know some judges who I think might as well be sitting on the bench while drunk.

    May 29, 2009 07:19 pm at 7:19 pm |
  5. Lori

    I've been watching CNN for days now and at the bottom of the screen they are posting information on Sotomayor's rulings. Republicans are complaining about her non-controversial comments but have they actually looked at how she rules??? She has ruled against ethnic minorities in a number of cases (Latinos, African-Americans) so highlighting the New Haven case as the 'deciding' case of her career is a joke. For what I gather, her record shows a fair and just judge. You Republicans need to take the time to look at a person's entire career instead of attacking b/c you HOPE to help the GOP fundraise by making a big scene about this nominee. It's not working and we see through you.

    May 29, 2009 07:26 pm at 7:26 pm |
  6. Robert Allen, Las Vegas

    When Republican National Committee Chairman Michael Steele, who happens to be a black guy – so he has a lot of experiences that WASP men and women do not, says "no 'slammin and 'rammin" Sotomayor, that alone should be enough of a call to withhold judgment and demonstrate the unwillingness to "shoot from the lip."

    I categorize politicians two ways:
    Progressive: Embraces change, looks for ways to help citizens, often mistakenly called a Liberal – which no one can define adequately.
    Regressive: Embraces the status quo, wants to revert as many areas of American life to the past as is practicable. Often called a Conservative which can be defined adequately.

    Citizens, on the other hand, make decisions based on biases learned through their environment during their formative years. It is worthy to note that in their landmark and groundbreaking study of the world population, Charles and Jurgens have proven that, "the IQ of the world is static, only the population keeps increasing."

    May 29, 2009 07:27 pm at 7:27 pm |
  7. No Incumbents 2010

    The Marginalizer May 29th, 2009 7:17 pm ET
    One can only hope she feels Gay Americans are equal Americans.

    Well if she doesn't you cannot blame her, that may not have been her life experience.

    May 29, 2009 07:27 pm at 7:27 pm |
  8. webster

    weep willow weep. The president name is Obama. the experiences you have had do not compare with hers. Read her life experiences again then send them to the white house for evaluation, perhaps he might pick you next.

    May 29, 2009 07:29 pm at 7:29 pm |
  9. liberal in maine

    another Activist judge litigating from the bench

    "Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well."

    Scalia is right. We use a common law system, which means courts use precedent set by previous court decisions. This is law as much as statutes and rules passed by the legislature is law, until the legislature overrides it. Court decisions make this common law. Court decisions also interpret the constitutions of the states and the country, which set precedents that, as Scalia notes, shape the states' constitutions.

    The second excerpt is Scalia pointing out that it's not just the courts of last resort (meaning the highest court in a state) whose decisions create precedent and set policy. The lower courts often do this is as well because, as Scalia notes, the highest courts don't touch on every issue or hear every case, so if you're dealing with issues not covered by the highest court, you go to the next highest court, which in some cases might even be the lowest trial courts if there's never been an appeal.

    May 29, 2009 07:32 pm at 7:32 pm |
  10. Stupid GOP tricks

    Most of you guys are proving that *you* are bad judges ...

    A person's qualifications should be judged based on their whole work experience, not on just one flippant thing they said at a panel discussion. I am so sick of this "gotcha" politics – it proves the mental bankruptcy of those who practice it.

    May 29, 2009 07:51 pm at 7:51 pm |
  11. Brian

    I'm sick of people even bringing up her heritage or ethnicity or her empathy. That means absolutely nothing, a judge is not supposed to have empathy for a plaintiff.
    A judge is there to rationally and coldly decide whether or not the ruling goes against the current rule of law, thats it. Thats all she's there for. Not to make policy, not influence the US but to reflect the writing of the US Constitution.

    May 29, 2009 07:51 pm at 7:51 pm |
  12. Tunstall

    Judge Soto is an excellent choice

    May 29, 2009 07:52 pm at 7:52 pm |
  13. Beverly in NC

    Sotomayor is an excellent choice for the Supreme Court. She is more than qualified and actually has judicial court experience, which none of the other current Supremes have.

    Of course people bring their own life experiences with them regardless of the job they hold. It is to our benefit that the Supremes actually have a clue about what is going on in the real world when deciding landmark cases.

    We desperately need moderation on the Court. Today's ultra conservative Supremes make ALL of their decisions based on their own political views. Thomas hates anything to do with affirmative action. Scalia hates anything that does not follow rabid conservative values. Roberts is violently against any womens rights issues – especially abortion rights.

    We need women and we need moderates on the Supreme Court to accurately represent today's American people and their issues.

    Sotomayor has the judicial experience, is a brilliant Constitutional scholar, and brings moderation and reality to a currently very stilted Court. She has nothing to apologize for in her honesty about what a Latino woman can bring to the Court.

    The Republicans should shut up and confirm her. George Bush appointed her to her current position and Republicans twice confirmed her. Suddenly she is not qualified??? Sounds like the Party of NO, HATE, and FEAR is back with all their hypocritical lies.

    I watch the Supreme Court closely and Sotomayor is EXACTLY what is needed to bring common sense and legal brillance to a very unbalanced group of rabid conservative men.

    Once again, President Obama has proven his excellent leadership skills in bringing America back to economic recovery and to a respected nation of values and honor.

    May 29, 2009 07:53 pm at 7:53 pm |
  14. Willy Brown

    Liberal is all she is

    May 29, 2009 07:57 pm at 7:57 pm |
  15. John

    Republicans play book of clipping utube clips!

    May 29, 2009 08:04 pm at 8:04 pm |
  16. C Burleson

    I sorely wish that when the President Obama's choice for Supreme Court Justice is discussed in the media, that they put her comments in context. Judge for yourself what she meant in her comments

    Judge Sotomayor stated in her speech in 2001:

    "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

    She also sated in the same speech:

    "Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

    May 29, 2009 08:08 pm at 8:08 pm |
  17. Hawaii gal

    Willow must be a far right wing republican that does not know how to read, like Sarah Palin. It you took the time to read about Judge Sotomayor, you would feel very differently, as she is an intellgegent and accomplished woman with more experience going into the Supreme Court than anyone currently serving there.

    Get over it, your party lost and now it is time for the SMART people to be in charge. Give me the Harvard Law Graduate who finished first in his class, Obama, any day over 'W' who was a C- student at best, and cannot even pronounce the word nuclear.

    Sore loser.

    May 29, 2009 08:08 pm at 8:08 pm |
  18. trooth

    Yes there are 3 branches in the government, but they all have different functions. Making law is the function of the legislative branch, not the judicial branch. Judges should interpret the law not form the law and that is what the framers intended and wrote out clearly in the constitution. If she wants to create law she needs to run for congress/senate, not be a judge all of her life. The judicial branch is not there for liberals/conservatives to overwrite what the people want. Both sides use the judicial system to pass through their vision of the ideal government bypassing the people completely.

    May 29, 2009 08:14 pm at 8:14 pm |
  19. chris

    What a Great pick!

    POTUS cornholed the elected GOP officials into a corner and will let the fringe GOP continue to keep up the attacks as Americans wonder and the Hispanic community banks a marker for the GOP as in "We will see you in 2010, 2012, 2014,2016 in addition to all the local and state elections.

    May 29, 2009 08:15 pm at 8:15 pm |
  20. No To Obama

    Anothe Obama Administration Racist towards the White People.

    May 29, 2009 08:25 pm at 8:25 pm |
  21. David in West Virginia

    What is wrong with Sotomayor's comment that policy is made in the federal courts. I agree with her comments in that most District Court cases are appealed and the Federal Court of Appeals do from time to time have to make changes to certain litigation that comes before the Court. Its common sense. Isn't that the reason we have a Court of Appeals, to right the wrongs of the lower court? These Repubicans are plain stupid!!!!!!!!!!!!!!!

    May 29, 2009 08:27 pm at 8:27 pm |
  22. foxrun

    It is disheartening to see the moral fabric of our nation crumble. This nominee not only has revealed her racist beliefs, but has demonstrated how she is unwilling to uphold constitutional construct of checks and balances.

    More and more Americans are voting and promoting the wrong side of ethics. If a white man or woman were to have said the things that this person has said...they would never hear the end of it.

    Here is what this nominee has to say about race:

    "She said in 2001: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." The remark was in the context her saying that "our gender and national origins may and will make a difference in our judging."

    Sotomayor's comments came in a lecture, titled "A Latina Judge's Voice," that she gave in 2001 at the law school of the University of California, Berkeley."

    How does she know what a white man had to deal with growing up?

    Concerned American.

    May 29, 2009 08:31 pm at 8:31 pm |
  23. gadgtfreak

    For those who understand civil procedures and law, her comments were not otu of line. Once a decision is published by the appeals courts it becomes precedent, i.e. law. Republicans must look else where for thier issue.

    May 29, 2009 08:34 pm at 8:34 pm |
  24. Tom Geter

    Alright stump jumpers lets think back a few years ago shall we when Trent Lott made his comments about Strom Thurmond. Every democrat wanted Trent gone because he was giving praise to an old man on his birthday. It did not seem to matter that this was the second time that Trent made the comment. He had made the same exact comment years earlier and nobody seemed to mind then. Trent was labeled a racist and had to go because he still had the same speech writer and stillapparently was not going over his speeches before he made them. This is what it should boil down to; she should be proud to be Latino, Obama should be proud of his black heritage and Trent should be proud to be white but most importantly we should all be proud to be Americans and collectively do what's right for the country and stop acting like middle school children.

    May 29, 2009 08:38 pm at 8:38 pm |
  25. Doug

    to once upon a horse.
    The reason we have a 33 percent approval rating is because America believes the lies the Democrat Party spews. If democrats were to tell the truth then they would have about a 10 percent approval rating Democrats lie and say we are against immigration no we are against illegal immigration.
    democrats lie and say we are against affirmitive action no we want the best person to get the job not quotos based on someones skins collor or religous prefourance or sexual preferance.
    Need i continue on more lies?

    May 29, 2009 08:42 pm at 8:42 pm |
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