Correcting The Record
Judge Sotomayor’s Comments About the Role of the Court of Appeals
Reflect Reality, Not Judicial Activism
RHETORIC: Judiciary Committee Republicans claimed that Judge Sotomayor’s off-hand comment that circuit courts “make policy” when deciding cases and her comment today that “circuit court judges do justice for the society as a whole” imply that she’s an activist judge.
JUDGE SOTOMAYOR said yesterday, “The task of a judge is not to make the law – it is to apply the law.”
Senator Sessions similarly recognized that Courts of Appeals make broader binding precedent when he described the Courts of Appeals as setting “policy” when ruling on cases.
FACT: In 1998, Senator Sessions spoke on the Senate floor about the nomination of William Fletcher to be appointed to the Ninth Circuit Court of Appeals. In his own words, Senator Session described the court of appeals as where judges set “policy.”
FACT: Senator Sessions said, “There are more district judges in the circuit than there are circuit court judges. And every appeal from a district judge’s ruling, almost virtually every one, would go to the courts of appeals in California and Arizona and the States in the West that are part of the Ninth Circuit. As they rule on those matters, they set certain policy within the circuit.” (CR 11872, October 8, 1998)
FACT: Circuit court decisions set binding precedent for district courts within their circuit, and, as a result, circuit courts do set “policy” for lower court judges, as Senator Sessions clearly stated. As Judge Sotomayor said today in explanation, Court of Appeals decisions “affect not only the individual cases before us, but the course of litigation and the outcomes of the many similar cases to come.”
In her comment, Judge Sotomayor made clear that she did not mean Circuit Courts make law.
FACT: In 2005, Judge Sotomayor appeared before law students at Duke University Law School to answer their questions about clerking for a court of appeals judge. One of the questions focused on the differences between clerking for an appellate court judge or a trial court judge. Judge Sotomayor’s comment in context was as follows:
"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 as Judge Lucero just said [go] into public law, all of the legal defense funds out there, they’re looking for people with Court of Appeals experience because it is [the] Court of Appeals is where policy is made, and I know, I know that this is on tape and I should never say that because we don’t make law. I know, I know, I’m not promoting it, and I’m not advocating it, you know. 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 say to people that when you’re in the district court you’re looking to do justice in the individual case so you are 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’re looking to how the law is developing so that it will then be applied to a broad class of cases."
FACT: Judge Sotomayor made clear in her answer that courts of appeals “don’t make law” and emphasized the point by saying that “I’m not promoting it, and I’m not advocating it.” This is consistent with her long record of being a restrained, careful jurist. Nothing in her actual record, whether in her opinions or her cases, suggests that she believes that courts of appeals make law, rather than apply it.