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Tilting at Windmills

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May 8, 2009

'WHERE POLICY IS MADE'.... It seems a little premature to start attacking individual quotes from a judge who might be considered for the Supreme Court. After a nominee is announced, scrutinize away. But before then, it's very likely a pointless exercise.

That said, one of the right's overheated criticisms of Judge Sonia Sotomayor, rumored to be a contender for the high court, speaks to a larger point of confusion among conservatives about the judiciary.

There's a video of Sotomayor speaking at Duke University Law School four years ago in which the judge said appeals courts are "where policy is made." Conservative activists and Republican senators have seized on those four words as evidence of "judicial activism." After all, they argue, "policy" shouldn't be "made" in the courts; it should come from the legislative process. To do otherwise, the theory goes, is to "legislate from the bench."

I have no idea whether Sotomayor will get the nomination or whether these four words will influence the process, but A.L. did a nice job explaining why the Republicans' argument is misguided.

The entire video clip can be found here. The context, as Orin Kerr helpfully explains in this post, is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear.... But in Simplistic Republican World, none of this actually happens. Good conservative judges don't "make policy," they simply enforce the law. The law is apparently always clear. Indeed it's a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply "enforce the law" (because they wouldn't dream of "making policy"), so the outcome should be very predictable.

I realize the right is on hair-trigger alert over this Supreme Court vacancy, and many are probably laying the groundwork now for future attacks, so they'll be more effective when the nomination is made.

But Sotomayor's quote is just common sense about how the appeals courts function. If she's chosen to succeed Souter, and the right is looking for something to freak out over, they'll need to look elsewhere.

Steve Benen 10:30 AM Permalink | Trackbacks | Comments (31)

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Just using the word "policy" even once is enough to disqualify her.

Posted by: qwerty on May 8, 2009 at 10:26 AM | PERMALINK

> There's a video Sotomayor speaking at Duje
> University Law School four years ago...

I think you meant to type "Douche University"

Posted by: goethean on May 8, 2009 at 10:28 AM | PERMALINK

Actually most cases at the Court of Appeals level are not policy-making cases. Those are fairly rare. The SCOTUS, however, gets to pick and choose its cases, and it picks the ones that do present what lawyers often call policy questions -- questions of what the law should be, or what the law should mean, when existing authorities don't clearly dictate the answer. Understanding this is a qualification for the job, not a disqualification.

Posted by: The Fabulous Mr. Toad on May 8, 2009 at 10:29 AM | PERMALINK

I thought courts interpreted the law? Not meaning to be snarky and all, but that was what I (seem) to recall being taught in school.

Posted by: Breezeblock on May 8, 2009 at 10:30 AM | PERMALINK

It is a mistake to attribute either good intentions or sincerity to rightwingers. They will freak no matter what and facts don't matter.

Posted by: wonie on May 8, 2009 at 10:33 AM | PERMALINK

Seven little words...

They need to get the four little words:

Where policy is made
Where policy is made
Where policy is made
Where policy is made...

Going in a loop alongside Rev. Wright's three:

God damn America
God damn America
God damn America...

What do the two have in common?
Nothing. But the base feeds on emotion, not logic. It is emotion, not science or facts, that drives policy for them. Think about that next time you watch some freak on Fox go bonkers...

Let's distill that and cork it...
Koreyel's seven words of political wisdom:

Emotion is the key to understanding Republicans.

Posted by: koreyel on May 8, 2009 at 10:39 AM | PERMALINK

If she's chosen to succeed Souter, and the right is looking for something to freak out over, they'll need to look elsewhere.

I'm not so sure about that. I don't doubt that they would love to derail any nomination that the President forwards. Next best is making political hay over Democratic appointments of "activist judges." I'm pretty sure that the media will be quite happy to play along with the discussion regarding Obama's "controversial" nominee, should Sotomayor be nominated.

Posted by: AK Liberal on May 8, 2009 at 10:44 AM | PERMALINK

The WronglyRight is incorrect, as usual. If, the Feckless Five vote by the Supremes in 2000 was not legislating from the bench, nothing has been. They decided, in advance, their ruling, then had their law clerks, frantically, seek any possible rule of law to support that ruling.

Geez, this was the constant refrain against the Supreme Court of California, before and during Chief Justice Bird's tenure. So, where were those carpers when the Bush decision was pre-determined?

Posted by: berttheclock on May 8, 2009 at 10:48 AM | PERMALINK

Let them freak out over this if she gets nominated. They'll just wind up looking stupid (as usual) when her comment is put in context and it's all explained to them.

Oh hell, what am I saying? You could explain it to them over and over 'til the cows come home but they won't listen. If she gets nominated and confirmed they'll whine about this and her for her entire tenure on the bench. That said, if Obama thinks she's the right choice, I hope he nominates her anyway. I'm sick and tired of seeing Dems cave to the loonies on the right. We got Roberts and Alito jammed down our throats -- time for a little payback.

Posted by: reddogs on May 8, 2009 at 10:50 AM | PERMALINK

Guess i should repeat my post from yesterday (1st post on the end of day thread; edited slightly to shorten). . .

On most of the "likely candidates" lists I have seen, Sotomayor is among the more centrist (one reason I prefer some other names).

* * *

Moreover, taken in context anyone with an ounce of legal background and an ounce of intellectual honesty would have to concede that what Judge Sotomayor said is inargubaly true. Indeed, she expressly said she is not endorsing courts making policy - it just is a fact. If one thinks rationally, rather than politically, of course it is: easy cases don't get to the published decisions of appeals courts. Appeals cases more often than not involve grey areas, unanticipated applications, or ambiguities where reasonable legal minds disagree. What she said actually shows the kind of care one should want in a judge -- that at the appeals court level, one cannot simply look at the facts as between the specific litigants, because the appellate decision will be precedental over all cases in an entire circuit. A judge must be mindful of how that plays out, mindful of the policy being set and the implications in other cases.

Arguably, Hatch has it exactly backwards: I take Judge Sotomayor's comments in full context to be that this concern for broader applicability serves as a limitation on a judge - sometimes what one thinks is right as between two private litigants may not be a just result if the facts are different, therefore it is not an appropriate appellate court ruling. It is a rule of conservative (decidedly little-"c") jurisprudence to write narrowly to minimize unintended consequences, or at least to attempt to fully contemplate those consequences.

* * *

Posted by: zeitgeist on May 7, 2009 at 5:39 PM

Posted by: zeitgeist on May 8, 2009 at 10:52 AM | PERMALINK

It would have been better, however, if Sotomayor didn't follow up by saying something like "Oops, I shouldn't have said that."

Posted by: Danp on May 8, 2009 at 10:53 AM | PERMALINK

Just tell the thugs that higher level courts set policy policy.

Posted by: Michael7843853 on May 8, 2009 at 11:02 AM | PERMALINK

I thought courts interpreted the law? Not meaning to be snarky and all, but that was what I (seem) to recall being taught in school.

They do, but when you're deciding whether or not a law, or part of a law, is constitutional, it can have the effect of setting a new policy, whether or not you're liberal or conservative in your interpretation.
Scalia wrote the opinion which basically determined the right to own firearms, which had the effect of requiring D.C. to change its gun law, thus establishing a new policy which was contrary to what D.C. voters wanted.
Scalia was actually criticized for his own activism by other legal scholars, so this business of "activism" and "setting policy" are all fairly subjective depending on who who ask and which judge you're talking about. I could argue that they've all been active and all have established new policies whether they intend to or not.

Posted by: Allan Snyder on May 8, 2009 at 11:13 AM | PERMALINK

Also, there is a difference between legislative policy and judicial policy. Even conservative judges apply their form of statutory interpretation to advance particular judicial policies. For example, judges using a law and economics model of decision making apply the policy of creating the greatest economic benefit. This is not legislative policy but rather judicial policy.

In this context, appellate courts have to be the only courts that make policy. Technically, a ruling by a district court has no precedential effect, only a ruling by an appellate court. That ruling will include certain judicial policy concerns, whether it be as simple as the policy in favor of judicial economy or the policy reasons underlying strict interpretation (creates a common sense view of statutes, etc.) Thus, all appellate judges make policy by virtue of their decisions, and they must do so to instruct the lower courts. No coded language here.

Posted by: Quinn Smith on May 8, 2009 at 11:15 AM | PERMALINK

"interpretation" needs interpretation. There is a strong here with the meaning of "interpretation" in my own field, which is music.

Western musical notation has been developing for about a 1000 years, and is for those who can read it, a remarkably economical and precise language. It tells you what notes to play, when, for how long, accurate to fractions of a second. What it doesn't tell you is how to stress certain ones, how to ever so slightly how to alter the timing, which lines to bring out, and which to de-emphasize, and above all, at what pace to play. There have been many attempts by composers to prescribe such things in detail, especially by using character terms traditionally in Italian (e. g. "con brio" --- with dash, "poco" --- a little, "non troppo" not too much" etc.) but these are open to interpretation as well, but there is still a lot of leeway for individual temperament, idiosyncrasy, taste (good or bad), and reference to tradition as one understands it. My own ideal is to try to divine what the composer might have done when playing the music himself...but I can never be sure I'm right and really am going by my own preferences, often subconscious.

The big difference between musical and judicial interpretation is that my choices have no consequences except to my musical conscience and the responses of audiences and above all, my fellow musicians, while judges' decisions obviously affect the lives of millions, often in profound ways.

But the analogy holds insofar as there can be no definitive and authoritative single "interpretation" of the language of a statute, constitutional locution or previous decision, especially if the locution is centuries old. A good example could be the Second Amendment: when written the most powerful common armament available to a citizen militia was a muzzle-loading musket that was totally inaccurate beyond 50 yards and could be fired by a well-trained person maybe twice a minute. It wasn't a converted semi-automatic that can get off a dozen rounds in a few seconds, or a sniper rifle packing dum-dum ammunition that can kill at half a mile. Here is scope for a lot of interpretation!

It would be refreshing to see things called by their right names once in a while. "Activist" means "I don't like the ruling" and "constructionist" menas the opposite. That holds for me too.

The meaning of the law has been evolving since the first code was written down. Why should it stop now?

Posted by: jrosen on May 8, 2009 at 11:19 AM | PERMALINK

The Fabulous Mr. Toad - As a practicing attorney, with several trips to the 2d Cir., not to mention being a pretty regular customer of their wares, I am not sure that I agree with what you are saying. If you are talking about cases involving public policy, there are certainly more than a few, but I think the likely use of the term in this context has to do with heavy lifting of creating workable rules and precedent within the context of legislation and stare decisis. That is very much, IMHO, in the realm of policy, and the Court of Appeals engages in the practice in almost every significant decision.

By the way, I have the highest regard for Sotomayor. She is sharp in questioning, and doesn't suffer fools gladly, which is as it should be. As a former law clerk in Federal District Court, I find it offensive that any law clerk, former clerk or clerk to other Judges, would be part of a whispering campaign against any member of the Court. It is simply unacceptable.

Posted by: Scott F. on May 8, 2009 at 11:23 AM | PERMALINK

Forget it. It's over. If she's appointed, she won't be confirmed, and this is why. This will enough to get Specter and other Conservadems (and, probably, "centrists" like the Washington Post ed board) to cave.

Posted by: Steve M. on May 8, 2009 at 11:25 AM | PERMALINK

Sen. Orrin Hatch and the sometimes Republican house organ, the New Republic are both going after Sonia Sotomayor


Sotomayor is a Liberal, smart, savvy judge


Posted by: MSierra, SF on May 8, 2009 at 11:32 AM | PERMALINK

Am I the only one who thinks it's ironic that this piece and the one about Georgia's 'secession' are next to each other? Repubs just LOVE the rule of law-- as long as they get to define it. Otherwise, they take their ball and run home crying.

Posted by: Brian on May 8, 2009 at 11:38 AM | PERMALINK

I thought courts interpreted the law? Not meaning to be snarky and all, but that was what I (seem) to recall being taught in school

Courts make law, in the absence of statute. That's been true for a thousand years in the Anglo-American system--it's what we mean by the phrase, "common law." Much of tort and contract law is not statutory, and it is even possible in most jurisidctions to be prosecuted for committing a "common law" crime.

Posted by: rea on May 8, 2009 at 11:39 AM | PERMALINK

In addition to what rea said, almost every single decision by Court of Appeals "makes" law. It is the byproduct of either statutory interpretation or the application of stare decisis (precedent) to the particular situation.

Posted by: Scott F. on May 8, 2009 at 12:10 PM | PERMALINK

Scott F.,

Yeah, I'm a practicing attorney too, and I clerked on a federal appellate court. Most of the cases we got were routine affirmances. And as an elbow clerk, I only saw the cases that required actual written opinions by a panel of circuit judges, not the ones that were handled by the staff attorneys' office. Also, most of the cases had significance only for the litigants involved. That's why the circuit courts have taken to designating so many of their opinions "unpublished" these days.

I'm not talking about cases that simply involve public policy, and I don't think Sotomayor was either. At some level, every case "involves" public policy. I'm talking about cases where an appellate court . What I'm saying is that even though the courts of appeals are courts of last resort for all but about 70 cases a year, the policy-setting cases are not the majority of cases. I don't mean to underestimate the difficulty or importance of the small fraction of circuit court cases that actually do set policy, however.

Posted by: The Fabulous Mr. Toad on May 8, 2009 at 12:32 PM | PERMALINK

"I'm talking about cases where an appellate court has to determine policy."

That's what I meant to write there in the second paragraph.

Posted by: The Fabulous Mr. Toad on May 8, 2009 at 12:33 PM | PERMALINK

Breezeblock beat me to it: courts interpret the law. Legislators make the law. Executives enforce the law.

This is a perfect example of wingnuts' refusal to read, understand and accept the basics of the Constitution - three branches, checks and balances, etc. - that the rest of us learned in the fifth grade.

Posted by: Yellow Dog on May 8, 2009 at 12:38 PM | PERMALINK

Policy is set at the Appeals Court level, in fact the main avenue for conservatives to get settled law before the Supreme Court is to stack one circuit with conservative justices which will write opinions which differ from other circuits. This forces the Supreme Court to hear cases and make a choice. If the appeals courts all agreed, there would be much less opportunity to push anything up for an ultimate decision.

Of course conservatives know this, they just don't want anyone to figure it out.

Posted by: tomj on May 8, 2009 at 12:50 PM | PERMALINK

The common sense explanation is too many words for a bumper sticker, so Sotomayer is toast.

Posted by: Reality bites on May 8, 2009 at 12:58 PM | PERMALINK

geez, its like a federal clerk reunion here.

i'm one as well (district, although my judge did sit circuit by designation for one round while i was there).

when we form our own Progressive farm team alternative to Federalist Society we can call it the "Political Animal Institute on Justice and the Law" or something.

Posted by: zeitgeist on May 8, 2009 at 1:01 PM | PERMALINK

jrosen: "What it (musical notation) doesn't tell you is how to stress certain ones, how to ever so slightly how to alter the timing, which lines to bring out, and which to de-emphasize, and above all, at what pace to play."

Well, there are accents and metronome markings, but not for old music, though scholars and arrangers sometimes give suggestions, I find that contemporary composers usually include them. That doesn't mean that the artist has to follow them, they are suggestions showing the idea and intent of the composer. If in fact, the musician cannot play the piece as fast as indicated probably best to go slower and play cleanly.

If we apply musical terms to pace, Obama is trying to get things done Presto, the Dems in Congress are overall in Moderato while the Rs are slowing things down in Largo and throwing in many of the serpentine turns, bump-in-the-road grace notes, and stumbling block accidentals.

Posted by: Oregonian on May 8, 2009 at 1:17 PM | PERMALINK

The Ninth Amendment makes judicial "activism" necessary, because judges must try to ascertain if unenumerated rights are involved in a given case.


Posted by: Neil B. ♣ on May 8, 2009 at 1:23 PM | PERMALINK

@ zeitgeist:

There's already a progressive alternative to the FedSoc! It's called the American Constitution Society for Law and Policy. (You may know this, but I never miss a chance to plug ACS.) Join at www.acslaw.org.

Posted by: The Fabulous Mr. Toad on May 8, 2009 at 2:09 PM | PERMALINK

yep - pretty active chapter at my alma mater, actually. but so far, while doing some cool things for those aware of them, they haven't gotten the public name recognition traction the Federalists have. i think our little band here has a catchier name. :)

Posted by: zeitgeist on May 8, 2009 at 2:47 PM | PERMALINK



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