The Volokh Conspiracy -

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.

	[Jonathan Adler, May 3, 2009 at 4:03pm] Trackbacks Courts Are "Where Policy Is Made": 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. Related Posts (on one page): The Sotomayor Video: Courts Are "Where Policy Is Made": Comments [Orin Kerr, May 3, 2009 at 6:34pm] Trackbacks 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): The Sotomayor Video: Courts Are "Where Policy Is Made": Comments