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The Sotomayor Video:
I have a different reaction than my co-blogger Jonathan to the video of Judge Sotomayor. Here's the transcript, as best I can tell:
  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. [audience laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm . . you know. [audience laughter]
  As I see it, Judge Sotomayor is saying that, descriptively, the court of appeals is "where policy is made." She then realizes that what she has said could be used against her someday — presumably in a Supreme Court confirmation hearing — so she pokes fun at herself and her situation by announcing for the record that she doesn't promote or advocate that, with the audience in on the joke.

  The impression I get is that she believes that court of appeals do make law, and properly so, but that some people out there don't understand this and you don't want to be on the record as expressing that position (even though it's correct). That's my best sense of what she's saying, at least.

  UPDATE: The entire video is available here. Judge Sotomayor 's comment comes at the 43:40 mark. The comment arises when she is explaining the difference between the district court and the court of appeals, and thus the difference in clerking at the two different environments. In the district court, she says, the goal is justice in the individual case. You need to think fast, and make a decision immediately. In contrast, at the court of appeals, the judges are usually — not always, but usually — worried about how the legal precedent will apply to the next case. So you need to be more contemplative at the circuit court level. Thanks to commenter "one of many" for the link.

Related Posts (on one page):

  1. The Sotomayor Video:
  2. Courts Are "Where Policy Is Made":
cboldt (mail):
The general point of "making policy from the bench" isn't terribly informative. Judges make decisions in a range of contexts, from pure common-law policy, to legislative application, to Constitutional application. The amount of "fresh interpretation" that is appropriate varies depending on the context.
.
But asserting the general proposition that the bench is the place from which to make public policy is sufficient substantive pretext to oppose the nomination. Should the opportunity arise, I'm sure the GOP can build on the foundation that Judge Sotomayor provided.
5.3.2009 6:45pm
CTzombie:
Seems like she is stating an empirical fact. Should we penalize our jurists for being honest (albeit circuitously)?
5.3.2009 6:55pm
New Pseudonym:
But can we have six Catholics on the Supreme Court? In any case, I believe she is the opposite of W.T. Sherman. If nominated, she will [be confirmed]. If [confirmed], she will serve.
5.3.2009 6:58pm
Oren:


The impression I get is that she believes that court of appeals do make law, and properly so, but that some people out there don't understand this and you don't want to be on the record as expressing that position (even though it's correct). That's my best sense of what she's saying, at least.

What support do you have the "and properly so"?
5.3.2009 7:00pm
Leo Marvin (mail):
Orin,

I agree with everything you said, but aren't you begging the question Jim addressed? Yes, she said appeals courts make policy, and, she implied, properly so. But is that the natural consequence of deciding legal controversies, as Jim suggested, or is it mis-using the legal controversy as a pretext to impose policy preferences on the law? I can't tell which she had in mind, if either, and that seems to be the question that according to some makes this newsworthy.
5.3.2009 7:05pm
OrinKerr:
Oren,

I watched the video about 20 times, and that was the impression I had. Of course, if you disagree, then that's great, too. They don't pay me extra if my correction is correct.
5.3.2009 7:05pm
OrinKerr:
Leo,

No, I am not begging the question. I was a circuit clerk, and when I was a clerk, my judge was not making policy. He was reading cases and deciding disputes on the legal merits in light of the record and standard of review.

Now, maybe that was an unusual experience, but that was indeed my experience as a circuit court clerk. Perhaps the most accurate way to put it is that some judges see their jobs as following the law, some as making it, and some as a mix of varying proportions.
5.3.2009 7:09pm
OrinKerr:
Leo,

Oh, and who is Jim? Not sure who you're referring to.
5.3.2009 7:10pm
SHG (www):
You may be right. Jonathon may be right. But unless either of you has magical powers, we're left with speculation as to her meaning based upon nothing more than bias. So which do you prefer, to presume Judge Sotomayor empirical or activist? There's no hard basis to reach any meaningful conclusion.
5.3.2009 7:12pm
Jon Roland (mail) (www):
I find it refreshingly candid, and it raises my respect for her. Of course, I feel the same about Edith Jones' remark to the Harvard Federalist Society about the American legal system being "corrupt beyond all recognition", which she has been apologizing for ever since. I regard it as her finest moment, and told her so the last time I spoke to her.

However, I am reminded of a comment from a fellow officer in the Air Force after I make a critical remark about official doctrine that upset a superior, "We agree with what you say but not with your judgment in saying it."
5.3.2009 7:15pm
Oren:

Of course, if you disagree, then that's great, too. They don't pay me extra if my correction is correct.

That's too bad, they should incentivize your positive blogging output.
5.3.2009 7:18pm
dmv (mail):
I think her "I know, we don't 'make law,' I know, I know," is a stab at people like Orin who endorse some formalist version of law. It sounded like the standard realist "judges make law, they don't find it," line, only applied to the Courts of Appeals as against common law courts generally.
5.3.2009 7:18pm
John VS (mail) (www):
Thanks for posting this.

Your transcript/assessment provides readers with a better assessment of what was actually said than Jonathan's earlier post. The link to the full context is also helpful.

Whatever one decides about the ultimate significance of this tape, it should be seen and discussed rather than dismissed out of hand.
5.3.2009 7:18pm
Bart (mail):
This is what is known as a Freudian slip, which Judge Sotomayor was quick enough to recognize and try to play off.

Nice try.

No jurist who believed her role was to neutrally apply the law would have made this statement.
5.3.2009 7:28pm
dmv (mail):

No jurist who believed her role was to neutrally apply the law would have made this statement.

We're back to Umpire Watch? Really?
5.3.2009 7:29pm
AF:
I think Orin's reading of the video is absolutely correct. But even under that reading, it isn't clear that SS has said anything legitimately controversial.

Courts of appeals clearly do "make law" in one sense of that phrase -- they decide cases raising novel issues, thus creating new precedents that constitute "law" to any lawyer practicing in that circuit.

The term "make law" is controversial because it is also used in a different sense -- to "make" rather than "interpret" the law. Judges who "make law" in that sense are often criticized.

Non-lawyers routinely fail to distinguish between these two meaning of the phrase "make law," and as a result it is difficult to use the term in the uncontroversial sense without running the risk of being misunderstood.

So I agree with Orin that SS "believes that court of appeals do make law, and properly so, but that some people out there don't understand this and you don't want to be on the record as expressing that position (even though it's correct)." But it strikes me that she was probably using the term "make law" in the practical, uncontroversial sense, and then corrected herself because she knew the term is easily misconstrued.
5.3.2009 7:42pm
Leo Marvin (mail):
Orin,

Sorry, I meant Jonathan.

[W]hen I was a clerk, my judge was not making policy. He was reading cases and deciding disputes on the legal merits in light of the record and standard of review.

And these decisions never effectively made or changed policy? Because I'm taking for granted that Circuit Court judges can't avoid affecting policy, however narrowly they circumscribe their task. If that's wrong, then I've learned something.

Perhaps the most accurate way to put it is that some judges see their jobs as following the law, some as making it, and some as a mix of varying proportions.

Assuming you confirm it's possible to decide appeals cases without policy effect. But if that's not possible, aren't we back to begging the question of what J. Sotomayor had in mind?
5.3.2009 7:45pm
Anderson (mail):
I am puzzled by the fantasy that the case law is sufficiently well developed that there is ALWAYS a clear answer to the correct outcome in a case, and thus that courts of appeal do not ever find themselves "making policy."

Regardless of whether the judge thinks that her judgment as to the law is the better extrapolation from the existing cases, the fact remains that courts of appeal do sometimes create law, and that these laws do have policy consequences.

I do not suggest that Prof. Kerr subscribes to said fantasy, but I do have a difficult time understanding what his position is. What do circuit judges do when the case law is not clear as to the proper result? Abstain? Draw straws? Exercise their best legal judgment, fully aware that their conclusion is not *compelled* by the precedents and thus could have gone the other way, and then *that* would be the law?
5.3.2009 8:12pm
Jonathan H. Adler (mail) (www):
Orin --

I don't think we disagree. My experience as a clerk was teh same as yours. But, as a practical matter, the decisions of hte D.C. Circuit "made policy" in that they often resolved legal questions at the heart of policy disputes. Thus, I think one can say, as a descriptive matter, the the courts of appeals "make policy" even if the individual judges are foucsed on answering legal questions on legal grounds.

I also agree that she realizes how her statement could be (mis)used, and so makes the joke, but I think her comment, as a descriptive matter, is fairly innocuous.

JHA
5.3.2009 8:19pm
Just an Observer:
What I took offense to was that Sotomayor used the terms "policy" and "law" interchangeably.

I don't really see a problem with a descriptive statement that COA judges "make law." Within the ambit of their opinions, they may be the last word construing statutes or holding on certain questions -- until they are trumped by some higher court.

However, it is a horrible gaffe to say that such courts "make policy," because courts at any level are not supposed to be making policy. In our system, that is for the political branches.
5.3.2009 8:22pm
Constantin:
Bart--Freudian slip or judicial Kinsley Gaffe?
5.3.2009 8:31pm
Anynonyno:

when I was a clerk, my judge was not making policy. He was reading cases and deciding disputes on the legal merits in light of the record and standard of review.


Nobody who can describe appellate judging in such a naive or disingenuous way deserves to be a law professor.
5.3.2009 9:03pm
Cornellian (mail):
she is explaining the difference between the district court and the court of appeals, and thus the difference in clerking at the two different environments.

Since she's addressing law students looking for clerkships, I always understood her remarks to be intended to contrast the difference between district courts and circuit courts, and it is entirely accurate and widely understood that circuit courts look at and decide big picture policy issues more than district courts do. Quite often they do so because Congress quite clearly wants them to do so, such as in the case of federal attorney-client privilege and antitrust law, examples I cited in an earlier thread.
5.3.2009 9:19pm
Volokh Groupie:
What's wrong Anynonyno? CLS club meeting get out early?
5.3.2009 9:50pm
frankcross (mail):
Orin, your judge was surely striving to decide based only on appropriate legal materials. But it does not take much knowledge of psychology to know your judge was doing much more than this. There is an enormous amount of evidence supporting the view that how one views the facts, or the law, is contingent on that person's background and views of the world. There is no neutral judge.

I think the relevant question is whether it is better for judges to recognize that they are affirmatively making policy with their discretionary decisions. Posner thinks so and thinks it will make judges less biased, and he has a decent case.
5.3.2009 9:51pm
Joeblow1078:

when I was a clerk, my judge was not making policy. He was reading cases and deciding disputes on the legal merits in light of the record and standard of review.



I doubt this. I have never encountered an appellate judge that refused to consider policy arguments under all circumstances.
5.3.2009 9:52pm
drunkdriver:
when I was a clerk, my judge was not making policy. He was reading cases and deciding disputes on the legal merits in light of the record and standard of review.

I bet even a firebreathing radical like Judge Sotomayor reads a case or two, quotes the standard of review, and glances at a record before pronouncing her latest freefloating policy declaration.

Your own judge was and is a great black-letter judge, but do you really think, for example, that a holding that private insurers who decide to withhold benefits to comp claimants are 'state actors' subject to the due process clause, bringing their actions within the scope of federal judicial review, is not a rather sweeping act of deciding "policy?"
5.3.2009 9:55pm
Psalm91 (mail):
"VG:

What's wrong Anynonyno? CLS club meeting get out early?"

Any other Christian Legal Society members here?
5.3.2009 10:16pm
U.Va. Grad:
Volokh Groupie:

What's wrong Anynonyno? CLS club meeting get out early?

Everyone's a crit when the other side's in power. ;)
5.3.2009 10:43pm
Leo Marvin (mail):
Anynonyno:

Nobody who can describe appellate judging in such a naive or disingenuous way deserves to be a law professor.

Don't stop there. I've always wondered what entitles someone to be a law professor. What else?
5.3.2009 10:44pm
OrinKerr:
Frank,

Judge Posner would seem to be a strange example for your case. When I learn that Judge Posner has written a new opinion in my area, I cringe: I know he'll write something very heavy on his personal opinion at the moment and exceedingly light on legal authority or understanding of the relevant text or constitutional provision. The chances that his opinions are filled with errors are unusually high relative to run-of-the-mill judges. If that is what you get when a judge becomes "aware" that he is making policy, I would much rather have judges not be so "aware."
5.3.2009 11:18pm
Cornellian (mail):

when I was a clerk, my judge was not making policy. He was reading cases and deciding disputes on the legal merits in light of the record and standard of review.

I doubt this. I have never encountered an appellate judge that refused to consider policy arguments under all circumstances.


The two are not inconsistent. An appellate judge can (and should) consider policy considerations within the narrow range delineated by reasonable readings of the wording of a statute, other admissible evidence of Congressional intent, and prior binding and persuasive judicial authority. That's the way appellate law has always worked and it's an entirely different sort of policy making function than a legislature, which can turn 180 degrees on an issue tomorrow if it feels like it regardless of the current state of the law and take up any issue it feels like at any time.
5.3.2009 11:35pm
Nick056:
Orin,

When the Supreme Court is forced to resolve a split among circuits (or implicitly examine differences in state statutes) does that process involve more than a mere application of review? It strikes me that some decisions turn so finely and on such ambiguous grounds that the logic of the decision will be colored by an appeal to something that lies outside the review process.

That "something" might be broad historical precedent, even if the instant use cannot be described as relevant in the narrowest sense; it might be a survey of world opinion; it might even be a bare moral presumption. On the issue of gays in the courts alone, I think of the Mass. Supremes citing Brown for rhetorical force in ruling out civil unions. I also think Scalia classing behaviors together in the Lawrence dissent largely on grounds of moral feeling rather than a dry analysis of their comparable elements.

You can disagree on the propriety of these particular moments, but I'm not sure you can disagree that so long as people make the law, that's how it's going to be made.
5.3.2009 11:46pm
Fugle:
OrinKerr:

Are you unaware that Judge Posner is the smartest judge in the world?

Though, perhaps Justice Alito was not entirely serious in his endorsement.....
5.3.2009 11:47pm
OrinKerr:
Nick056,

I am discussing the U.S. Court of Appeals, where judges are formally bound by U.S. Supreme Court precedent and circuit court precedent. You appear to be talking about the U.S. Supreme Court, where judges formally are not bound by precedent. I think the enterprise of judging in the two levels is different, so it's important to keep them separate.

More broadly, it is always true that there will be a subset of cases for which the relevant legal sources are truly in equipoise, and there is no answer that is more persuasive than another based on traditional legal sources. But I think these cases are extremely rare at the circuit court level -- when I was a clerk, I came across only one such case (it was on a very technical question of no general public interest, fwiw).
5.3.2009 11:53pm
Brock (mail) (www):
I think Sotomayor was candid and accurate. The highest Courts do make law and decide policy. It's inevitable, since the black letter law can never anticipate all the weird things that happen in the real world, and Judges need to decide a case with imperfect guidance.

My problem with this isn't that Judges make law and policy (like I said: inevitable) but that this law and policy is not subject to legislative review short of writing an entirely new law (which could also be 'misinterpreted'). A lot of babies could get thrown out that way, and the Legislature's unwillingness to throw out those babies leaves us with lots of dirty bathwater.

I'd prefer a situation where individual laws or policies created by Judges in their decisions were subject to Legislative review. By example, perhaps the Legislature could approve by 2/3rds vote a letter to the Court basically saying "You got it wrong. The law is like so..." That wouldn't change the outcome of the case, but it would create political control over political precedents created.
5.4.2009 12:04am
Paul A'Barge (mail):
so you've changed your mind and she's alright now?

It's all so confusing.
5.4.2009 12:18am
Sean Hecht (mail) (www):
Orin,
I'm intrigued, or maybe even startled, by your comment above. You seem to be saying that the vast majority of cases decided by federal appellate courts are trivial, in the fundamental sense that there is only one answer that someone correctly using "traditional legal sources" can legitimately arrive at; and that as a corollary to this, that in the vast majority of cases, where a judge structurally bound by Supreme Court precedent comes to a conclusion you disagree with, that judge is using what you call non-"traditional legal sources." Do you really believe these 2 things? Across cases involving diverse judicial tasks that include interpretation of statutes, constitutional provisions, legitimacy of administrative agency action, and common law principles? And if so, what do you mean by "traditional legal sources"?
5.4.2009 12:24am
OrinKerr:
Sean,

I did not mean to suggest that cases are "trivial." Mastering the complete record in an appellate case, and researching all the legal issues on your own (which you normally have to do because the parties usually do a weak job), can be intensely time-consuming and require a tremendous amount of sustained attention. It's a quite difficult job when done well; it's not at all "trivial."
5.4.2009 1:14am
Wayne:
Many of the landmark cases we studied in law school involved judges making policy. Judges have to make policy decisions all the time in areas not addressed by the legislature. For example, tort law involves a great deal of judge-made law. How far does causation extend? Is privity necessary between a manufacturer and a consumer? The idea that judges aren't supposed to make policy judgments when deciding cases shows ignorance of our common law system.
5.4.2009 1:17am
OrinKerr:
Wayne,

I believe we're talking about federal law, not state common law.
5.4.2009 1:20am
Nick056:
Orin,

I was indeed referring to the Supreme Court (and in one case a state Supreme Court, where the dynamics are similar in certain regards). I discussed the USSC because the idea that the Court of Appeals makes policy would likely be interpreted as a clue to Sotormayor's style as a prospective SCOTUS justice. It's true you were explicitly referring to lower appellate courts, but I believe she was conscious -- evidently -- that her own words would be understood by some as encompassing more than the US Court of Appeals. Perhaps, given the nature of politics, she was even especially sensitive to her words in the context of Supreme Court jurisprudence.

I bring this up because you noted that you weren't strictly question begging given your own experience. And when it comes to the US Court of Appeals, I defer both to your experience and the reasonable distinctions you've drawn that give that court a particular character. But that's not wholly what's at play, here. I'd contend that as the quote will be weighed going forward, the Supreme Court is primarily at play, though I understand her immediate audience at the time wasn't taking the words in that context. So it's important discuss "policy making" in view of that court's role.

(All of this is premised on Sotormayor even getting nominated this time around. I agree with your earlier post that Kagan seems most likely.)

I am quite curious, though. What if, among the equipose factors at hand for the Court of Appeals, you include several competing and non-determinative precedents, or a lack of any clear precedent, in which case the Court is examining a fresh issue, or deciding which category of acts is most analogous to an entirely fresh issue. Are those decisions entirely bereft of the same wide-ranging recourse to history, world opinion, and personal morality that can characterize USSC decisions? Doesn't a judge occassionally consider what seems more humane or in line with personal principles in determining which category of settled law to apply in a fresh case? For example, a new surveillance technology emerges that could be described as used most like various other survellance techniques. In choosing which analogous use is the better fit, the judge relies most on a personal sense of what most protects a reasonable expectation of privacy. In relying mostly on that rather than on some other consideration, he is in fact making policy. And if he chooses to rely on something else, he is also -- by dint of weighing the issue -- making policy.
5.4.2009 2:26am
drunkdriver:
Mastering the complete record in an appellate case, and researching all the legal issues on your own (which you normally have to do because the parties usually do a weak job), can be intensely time-consuming and require a tremendous amount of sustained attention. It's a quite difficult job when done well; it's not at all "trivial."

This is of course true; and, to a practitioner, a humbling thought. You always aspire to have done a good job . . .
5.4.2009 9:25am
Anderson (mail):
Prof. Kerr is surely right that the difficult, either-way cases are relatively rare.

Regardless, it seems that the update clarifies her meaning. Appellate courts' published opinions will be binding precedent on district courts and on panels of the same appellate court. The court is "making the law" in that sense. So it's important to do so cautiously and with close attention to existing precedent.
5.4.2009 9:35am
frankcross (mail):
Orin, I leave open the question whether Posner's approach is better or not. My point is that all judges are substantially influenced by nonlegal factors, either consciously or unconsciously. And there's lots of testimony from circuit court judges that difficult cases are not extremely rare or relatively rare. They have said that the percentage of "close cases" was 15% or much higher
5.4.2009 10:40am

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