May 29th, 2009
06:14 PM ET
9 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. Gary in CA

    I think he should nominate Judge Ito. We are living in a media-driven, reality-TV based culture and that would be a good fit with Obama and Biden and all that crowd. It would be a good idea to probably make some kind of reality show about the whole thing, where every week Obama invites a poor person to come live in the White House. There would be all sorts of dramatic developments and it would be exciting and fresh. Also, Judge Ito is Asian so that would tie in nicely.

    May 29, 2009 08:43 pm at 8:43 pm |
  2. William, from Cali!

    SHE IS "HUMAN"......AND LIKE ALL humans! PRONE TO MAKE MIS-SPOKES!..................

    May 29, 2009 08:44 pm at 8:44 pm |
  3. mike

    Leading The Chorus Of Hate Of Course.

    Mr I Hope He Fails.

    Rush Racist

    May 29, 2009 08:51 pm at 8:51 pm |
  4. Ken Shade

    Many fear intelligence. Many fear confidence and perseverance. They fear these things because they lack the ability to understand then. That is why we have people like Limbaugh, Glen Beck, G. Gordon Liddy and others. That which they cannot grasp and understanding for or of or control of, they attempt to build a cloud of suspicion and fear around so as to make their ignorance look good.

    May 29, 2009 08:51 pm at 8:51 pm |
  5. mike

    "Here you have a racist – you might want to soften that, and you might want to say a reverse racist," Limbaugh said the day before on his radio program.

    Limbaugh needs to go back and read his top ten racist statements!

    Millions Of Americans Thinks He's a racist.

    Rush, Not Just That 12% You Don't Care About

    May 29, 2009 08:57 pm at 8:57 pm |
  6. Represent

    Judge Sotomayor graduated summa cum laude from Princeton and earned her law degree at Yale. Republican President George H.W. Bush nominated her as a federal judge and Democratic President Bill Clinton nominated her for the US Court of Appeals. She is an excellent choice for this position; highly qualified and diverse. As hard as it may be for people like you to believe or accept, people from diverse cultures and ethnicities are more often than not, very highly qualified for positons they are hired/appointed to. Judge Sotomayor's impressive resume had more to do with her selection than her life experiences alone or ehtnicity.

    May 29, 2009 08:59 pm at 8:59 pm |
  7. Stu-Florida

    @ Ken Shade
    Well spoken. The ignorant among us are our own worst enemy.

    It's high time to make America smart again. Smart enough to understand that we quite possibly have the most intelligent President ever. The fear of the Republican party is profound...

    May 29, 2009 08:59 pm at 8:59 pm |
  8. Tom in CA

    RUSH 2012!

    May 29, 2009 09:14 pm at 9:14 pm |


    May 29, 2009 09:16 pm at 9:16 pm |
  10. mike

    Who said this?
    Hint he's a radio talk show host;

    "If you are unskilled and uneducated, your job is going south. Skilled workers, educated people are going to do fine 'cause those are the kinds of jobs Nafta is going to create. If we are going to start rewarding no skills and stupid people, I'm serious, let the unskilled jobs that take absolutely no knowledge whatsoever to do - let stupid and unskilled Mexicans do that work."

    What right does he have, to say a are group of people are stupid!

    It wasn't long ago, when we thought that all African Americans were
    stupid, unskilled, not capable of learning. So they inslave them.

    May 29, 2009 09:18 pm at 9:18 pm |

    Sit down and read what she said. think in the terms of what she is saying and you will see just how wrong the republicans are. they are doing what they allways do. cherry pick the words til the say what you want. get a life republicans.

    May 29, 2009 09:19 pm at 9:19 pm |
  12. mel

    willow – where did you go to law school, did you graduate 2nd in the entire class, and how long have hyou been a judge – must consider that before i can tell how good you would be.

    brian – i have not heard anyone call for thomas to be removed from the supreme court – after all, bush 1 recommended him, citing his "empathy"

    May 29, 2009 09:21 pm at 9:21 pm |
  13. Rick

    Older white men typically reach better judicial decisions because of the opportunities that they took advantage of, i.e. more stable families, better diet, better health care, better schools, etc. We should not elect latina Hispanic judges as long as there are better qualified white men.

    Is this a racist comment?

    May 29, 2009 09:24 pm at 9:24 pm |
  14. Hey Doug!

    @Doug Please continue with more Dem lies; your thoughts intrigue me and I wish to subscribe to your newsletter.

    oh here perhaps this will help Doug:

    Plaes continu wthi more Dem lies; you aer smrt.

    May 29, 2009 09:26 pm at 9:26 pm |
  15. once upon a horse

    @ Doug....

    the reason you guys have a 33% approval rating is because 67% of the country doesn't like you and what you stand for. And the truth is that some of those 67% also include former GOP members. Truth?? You guys can't handle the truth...and I have also voted GOP in the past..but that was like I said THE PAST!

    May 29, 2009 09:35 pm at 9:35 pm |
  16. Pragmatic

    When did Hispanic become a "race" – its more like being Italian or Irish – a cultural heritage.

    With 17 years of opinions, and hundreds of people reading them, they are finding that they are well written, well researched and well within the framework of the law. The "fireman" issue is just that: decided not on what may or may not be "right" but what the law was – as written.

    She did not and has not attempted to legislate from the bench ... and there is a long, long paper trail to prove it ... not that the anti-President Obama crowd would do the research when its so much easier to quote rush & newt – the new comedy team.

    May 29, 2009 09:42 pm at 9:42 pm |
  17. LaRazzaMatazza

    If all that makes for a GREAT SCOTUS is a "wise latina" then hellz bellz... Judge Marilyn Milian should be The People's Choice!!!
    c'mon CNN scroll her decisions 24/7

    May 29, 2009 09:43 pm at 9:43 pm |
  18. Alex

    This discussion is a moot. Sotomayor will be confirmed and that's that. However, I am enjoying watching the Republican Party self-destruct. Keep it up Rush. Way to go Hannity. Good luck winning future elections without the Latino vote.

    May 29, 2009 09:43 pm at 9:43 pm |
  19. Chris

    "The judicial branch is not there for liberals/conservatives to overwrite what the people want. "

    Absolutely wrong and incredibly naive. This is the opinion of Tom Delay who made threats against Federal Judges for not intervening in the Terry Schiavo case after Congress quite un-constitutionally stepped in. It IS the job of judges to step in and overturn laws that are illegal and unconstitutional.

    When Republicans say they don't want activist judges legislating from the bench what they are really saying is that they want conservative judges who will rubber-stamp everything they do.

    That is not and has NEVER been the role of judges in this country. Please educate yourself before you post. Thank you.

    May 29, 2009 09:53 pm at 9:53 pm |
  20. wally

    @ Beverly in NC:

    she has "judicial court experience which none of the other judges have..."


    May 29, 2009 10:07 pm at 10:07 pm |
  21. Tbone85

    It's all really hilarious. The right wing has manipulated the conversation so that when public policy is made by the right wingers on the court, it's considered judicial restraint. When it's made by the left, it's considered activism. Now Roberts absurd concept of a multiple judicial body acting the same as a singular umpire calling balls and strikes is being latched on as if it were some gospel from the heavens. Just be honest: the left wants left-wint policy made by the courts, and the right wants right-wing policy to be made by the court.

    These attempts at word manipulation are a joke. When the supreme court voted on whether to stop the lawsuit on whether Bush won Florida, they voted directly along party lines! There was no pretense of "restraint" or "activism".

    May 29, 2009 10:21 pm at 10:21 pm |
  22. Mick

    It's always funny to read how "conservatives" are so against "judicial activists" and claim that this is a new phenomenon. Apparently they were all absent the day that American History was taught in their schools. From Dred Scott versus Sandford to Plessy versus Ferguson to Brown versus Board of Education to the very recent SCOTUS decision overturning the written law and the will of the people of Washington, DC to get handguns off their streets, the Supreme Court has interpreted and shaped the laws of the United States. Of course, the "conservative" anti-judicial activist "respect the vote and will of the people" blowhards were nowhere to be heard when the Supreme Court overturned the WDC gun control law because it benefited the "conservative" viewpoint. Yet another example of "conservative" hypocrisy.

    The most hypocritical of the incalculable number of hypocritical "conservative" goals is to get one more radical right wing justice on the Supreme Court to overturn the existing precedent of Roe versus Wade also upheld in United States Federal Law. Those same precedents that "conservatives" are always railing about upholding, unless of course conservatives don't like the precedent then they're fine to overturn. "Conservative" idols Scalia, Roberts, Alito and Thomas have overturned numerous existing lower court and Supreme Court precedents to bend the law to the radical right wing viewpoint but of the course the "conservative" hypocrites utter nary a peep about those precedent reversals because they benefit the "conservative" minority.

    "Conservatives" are all for judicial activism but only such judicial activism as bends the laws to the extreme right benefiting their "do as I say not as I do" hypocritical world view.

    May 29, 2009 10:24 pm at 10:24 pm |
  23. MJ

    @ Doug

    The reason you're at 33% is that your party screwed up everything they touched the last eight years. Presidential elections nowadays are mostly decided by independent voters like myself. For a republican to call out dems on their lies is laughable, if not delusional, and most certainly hypocritical. If you want to know the problem with your party take a good long look in the mirror.

    May 29, 2009 10:27 pm at 10:27 pm |
  24. Terry

    I don't want a Conservative judge, who will use the bench to enforce their extreme right-wing agenda, diminishing the rights of individuals, enhancing the "rights" of global corporations, gutting the advances that the middle class has made since 1932 due primarily to Liberal Presidents like Roosevelt, Truman, Kennedy, Johnson, and Carter. Before them, the country was owned by a tiny upper class. During those administrations, there was a huge transfer of wealth from the upper class to the middle class. In fact, the American middle class came into existence because of Liberal American governments. Conservatives would lead us back to the 19th century: dangerous jobs, low wages, no benefits, no retirement, no health care, no 40 hour week, no 8 hour day, no overtime pay, lower pay for women and minorities, and a resegregation of many parts of the country.

    I also don't want a centrist judge, who will dawdle toward the left on one case and teeter toward the right on the other case. Centrists and moderates, with their "split the difference" Solomonic wisdom would serve no purpose, half-solving every problem and half-destroying every good idea.

    We must ask ourselves what kind of America we want to live in. Conservatives want us to live in an America owned by a tiny elite Olympian super-class of billionaires where ordinary Americans are tenants in their own nation, working for peanuts for some global corporation.

    I personally would prefer a mostly middle class nation, where no one earns 400 or 500 times what the ordinary worker makes. (I mean, what can a person who makes $40,000 per hour possibly do in an hour that we couldn't get someone else to do for a measley $5,000 and hour?) I prefer a nation where sick kids get medical care, retired workers can enjoy the end of their lives, and where any kid with spunk can work his way through college. I prefer equal pay for equal work and equal rights for all groups. I don't see any reason to have a nation with poor people in it. No one wants to be poor. No kid should be poor.

    I'm a Liberal. I'm proud of it.

    May 29, 2009 10:29 pm at 10:29 pm |
  25. BC in NC

    Rush, yoy need to brush your teeth with a wire brush and hush, Rush.

    May 29, 2009 10:33 pm at 10:33 pm |
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