A video of Sonia Sotomayor, a judge on the U.S. Court of Appeals for the Second Circuit widely viewed as a short-listed for the Supreme Court, is making the blogospheric rounds. In the clip, she says that the courts of appeals are "where policy is made." Some seem to think that this is a damning statement and evidence of closet "judicial activism." I don't. As presented in the clip, it seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications -- and deciding the case will, in many instances, "make policy." But this is wholly consistent with the idea that a judge's responsibility is to interpret and apply the law without regard for those policy consequences. Further, given the context of Judge Sotomayor's remarks, it is totally understandable why some prospective employers would want to hire individuals who are exposed to these sorts of cases. So, in sum, I don't think the statement on this video clip is a big deal. Move along.
Courts Are "Where Policy Is Made":