Patterico's Pontifications

5/26/2009

L.A. Times On Sotomayor’s “Courts Make Policy” Quote: She Was Joking!

Filed under: Dog Trainer,General,Judiciary,Obama — Patterico @ 6:24 pm

The L.A. Times today says of Supreme Court nominee Sonia Sotomayor:

Later, in a 2005 speech, she suggested that the federal appeals courts “is where policy is made” — although she quickly suggested she was joking.

I call B.S. on that characterization, and invite you to watch the (very short) clip to judge for yourself:

Here’s my transcript:

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 this is on tape and I should never say that, because we don’t make law. I know. OK, I know. I know. I’m not, I’m not promoting it and I’m not advocating it. I’m, you know. OK. Um. [Laughs]

She’s not saying she was joking; she is actually saying: OK, I just realized that the truthful statement I just uttered is something I’m not supposed to say.

As I noted in an update to my initial post on this quote, when it’s understood in its proper context, it’s not quite as bad as it sounds. She was distinguishing between the role of district courts (which by and large don’t worry about the policy implications of their rulings) and that of appellate courts (which have to worry about how the principles they enunciate will apply to future cases). She worded the concept especially badly — something she quickly recognized. But that’s not the same as saying she was joking. She just said it really, really badly.

But I’m pretty sure that precision in speech is not a necessary attribute for a Supreme Court justice. Not when you consider the importance of empathy and group representation.

P.S. If there’s a silver living, it’s this: she appears to be OK on criminal law issues.

48 Responses to “L.A. Times On Sotomayor’s “Courts Make Policy” Quote: She Was Joking!”

  1. “Can liberal-bashing ‘Goode Family’ survive?” asks the LAT on its home page today.

    happyfeet (2d133f)

  2. So whats the issue here? You get a ruling in a circuit, and thats the policy for that circuit. The point seems rather descriptive and bland: appellate courts are where real important decisions get made.

    imdw (58e4e0)

  3. FWIW

    I heard the clip on Hewitt tonight, being discussed by Hewitt and “the smart guys”. All of them thought similar to you, that in context this was not really as bad as it sounded.

    What did sound really bad were her comments about there being no objective law out there, that all decisions were simply the exercise of power (not direct quotes, but I think that was close enough to be representative). Chemerinsky said ‘of course she believes in objective law, she’s just talking about the grey areas’. Hewitt and Eastman gagged and said, “What did she say?!?”

    MD in Philly (3d3f72)

  4. Based on the Sotomayor opinions I’ve read, the Tom Goldstein/Akin Gump summary of her decisions, and the Second Circuit gossip from liberal staff and courtwatchers regarding her intellect and demeanor … I’m not sure Sotomayor can hold her own with any of the current liberal or conservative Justices. IMO Elena Kagan could have been a powerful force, both intellectually and personally, but Sotomayor has more question marks.

    Of course, I’m sure Sotomayor will have firm opinions but IMO a judge on a 3-judge panel of a circuit court actually has more influence and power over the disposition of a specific case than a 1-of-9 Supreme Court justice has. Thus, on the Supreme Court, her power will come from convincing others to join her. I wonder if she can.

    DRJ (2901e6)

  5. Re: criminal law issues

    Not so fast. As a district court judge, she had a habit of apologizing to criminals during sentencing, telling one drug dealer that he was a “victim of the economic necessities of our society.” And she was soft on corruption in at least one case.

    Karl (3bf5f8)

  6. Also, Tom Goldstein was a Hillary Clinton donor. For that matter, two of the attorneys quoted in this BusinessWeek piece (including another Akin Gump attny) are big Dem donors.

    Karl (3bf5f8)

  7. There is no question that appellate courts create governmental policy in many areas. In a field such as anti-trust where Congress passed a vague law and then left it to the courts to sort out, the Courts of Appeals and SCOTUS have created and recreated US competition policy multiple times.

    Circuit Judge Sotomayor cannot be faulted on this issue. I think it was also appropriate for her to state that she was not advocating this reality;this is something handed to the courts by Congress, as often as not.

    Cyrus Sanai (ada6da)

  8. “Not so fast.”

    She was also a prosecutor.

    “Also, Tom Goldstein was a Hillary Clinton donor”

    I forget, does this still make him anti-barack or no?

    imdw (7c85b9)

  9. “As a district court judge, she had a habit of apologizing to criminals during sentencing, telling one drug dealer that he was a “victim of the economic necessities of our society.” And she was soft on corruption in at least one case.”

    Seems like she also has a habit of following the law even though she disagrees with it.

    imdw (7c85b9)

  10. So, what do we do about her? We could filibuster her, and still lose, or we could oppose her, and get lucky and force her withdrawal, and then have President Obama nominate someone worse. We know in advance: he’s not going to nominate someone we like!

    My suggestion is: no filibuster attempt, but every Republican voting against confirmation, stating that the vote is based on the principle that “empathy” has no place in overriding the law as passed by the legislature.

    Or perhaps Republicans could vote “present?”

    The frustrated Dana (474dfc)

  11. although she quickly suggested she was joking.

    Yea, right. In her case, I’d say her humor really was more like a Freudian slip.

    And I really couldn’t care less whether a president’s nominee to the Supreme Court is a female or male, Latina or Anglo (etc), Catholic or Jewish (etc), old or young, hetero or homo, vegan or meat-eater, or whatever. I only really care about a nominee’s political biases, whether they lean left or right, or tend to be stealth (eg, David Souter, pre-confirmation) or squishy.

    I’d imagine Sotomayor would feel the same way. So she’d probably favor a Supreme Court that was made up of 9 white male justices who were all of the left versus one that was comprised of 9 female Latina justices who were all of the right.

    A likely future colleague of hers, Clarence Thomas, pretty much proves that assumption, based on all the individuals, groups and causes associated with the left that tend to shrug Justice Thomas off, ignore him, and certainly not cozy up to him with endless cheers and accolades.

    Mediamatters.org:

    [W]hen Sotomayor asserted, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases.

    As Media Matters for America has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas “is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him” and argued that Thomas’ work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

    Mark (411533)

  12. FWIW, I read her comments about making a better judge than white folks and the Court of Appeals comments pretty much says everything I need to know.

    Bitch has got to go. Wayyyyy tooooo arrogant with the false holier-than-thou arrogance many extremists have.

    HeavenSent (ac3026)

  13. Um Mark, whatever John Yoo might have said Justice Thomas did not say them of himself.

    Sotomayor’s comments are BIGOTRY.

    This holier than thou crap that MANY minorities (as Sotomayor made) spout as a justification for poor behavior. And I am a f*ing spic.

    Soto gotta goto.

    HeavenSent (ac3026)

  14. http://balkin.blogspot.com/2008/09/promise-conservatives-expect-mccain-to.html

    “One of Senator John McCain’s biggest applause lines in his speech last night was this: “I will appoint judges who…do not legislate from the bench.” Every Republican presidential nominee since Nixon has made this claim, and it always gets a roar from the conservative crowd.

    It’s baloney, of course, for two main reasons: judges inevitably legislate, and conservatives want them to legislate.

    The fact that judges legislate has been acknowledged openly and often for at least two centuries. As far back as 1833, an American jurist wrote: “as every one knows…courts in point of fact make the law, performing at the same time the office of legislators and judges.” The great English constitutional law scholar A.V. Dicey said in an 1898 speech at Harvard that “all lawyers are aware” that a large part of the law is “judicial legislation.” His renowned contemporary, Frederick Pollock, wrote “No intelligent lawyer would in this day pretend that the decisions of the courts do not add to and alter the law.” A prominent conservative judge of the period, John Dillon, wrote that “stupendous work of judicial legislation has been silently going on” for a ‘long period.’ “

    Duvel (62b020)

  15. Ha ha ha. Again the ‘race-blind’ conservatives are apoplectic.

    Cheer up, you ‘anti-racist’ whiteys (and yes, we know most of you are white from blogging demographics). We now have a Supreme Court Justice that has been published in the Berkeley La Raza Law Journal. You can look it up on Westlaw! Of course this position was no white males allowed from the very beginning. And those of you who don’t think Ms. Sotomayor will be advocating for her Latina/o brethren are out of your skulls.

    If this is what happens when the country is 2/3 white, think of the situation when it is 2/3 ‘minority’. What a country we leave to our children, how we have dishonored our ancestors. Better wake up an start thinking of alternatives, instead of this ‘oh, gee, why can’t they just leave race out of it’ schtick.

    hortense (aka horace) (6fdfda)

  16. She does not believe in separation of powers.

    She has admitted it is impossible for her to put her ethnicity and sex aside in making decisions.

    Her Supreme Court record is not so good. More than her fair share over-turned for over-reaching.

    She is a bigot.

    Not a believer in equal protection … as evidence by the non-black firefighters decision.

    HeavenSent (ac3026)

  17. hortense, we now have a nominee for Supreme Court Justice who has been published in blah blah. Perhaps, if you are going to demonstrate your wisdom, you could familiarize yourself with the facts.

    Also, your bigotry is noted. Thanks much for that. I’m going to wake up tomorrow thinking of alternatives, asshole.

    carlitos (a0089e)

  18. It is interesting to note that Sotomayor’s bigotry is not demonstrably differnt than horace’s.

    JD (fdabd3)

  19. whatever John Yoo might have said Justice Thomas did not say them of himself.

    If one has to dredge up a person’s racial background in the first place, then I’d say Yoo’s comments at least were more sociologically accurate. Moreover, Yoo apparently was quite aware of and interested in Thomas’s working-class origins and comparing those with the growing-up years of the counterpoint group, that being a bunch of latte liberals who never were pleased with Thomas.

    Furthermore, a greater percentage of people on the left than on the right encourage the idea that one’s exterior characteristics — certainly as they involve race, ethnicity or gender — somehow greatly affect every other aspect of that person’s very existence. From that, you get the so-called soft bigotry of low expectations, which is one of the most telling and ironic aspects of liberalism (and liberals) in the 21st century.

    Meanwhile, here’s another window into the mind of Sotomayor:

    George F Will, May 27, 2009:

    Before Sotomayor’s confirmation hearings begin, the Supreme Court probably will overturn a ruling she supported on the 2nd Circuit — the propriety of New Haven, Conn., canceling fire department promotions because there were no African Americans (although there was a Hispanic) among the 18 firemen the selection test made eligible for promotion.

    A three-judge panel of 2nd Circuit judges, including Sotomayor, affirmed a district court’s dismissal of the firemen’s complaint, doing so in a perfunctory and unpublished order that acknowledged none of the large constitutional questions involved.

    Stuart Taylor of the National Journal calls this “a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.”

    Taylor says that when “the circuit’s more conservative judges got wind of the case,” they sought to have it reheard by the full 2nd Circuit. They failed but successfully argued that the Supreme Court should take the case.

    Mark (411533)

  20. [...] Patterico on another hot-button Sotomayor quote, appellate courts are “where policy is made,” spanks his favorite whipping boy, the LA Times, for excusing that as a joke. [...]

    Jules Crittenden » Blood Sport (98837e)

  21. If her name was Jane Wilson she wouldn’t be one of the first million possible choices for SCOTUS. Actually make it about the first 150m because she wouldn’t be a judge at all. But she’d still have been in front of any males.

    bandit (36701c)

  22. How very racist and sexist, bandit.

    JD (fdabd3)

  23. “A three-judge panel of 2nd Circuit judges, including Sotomayor, affirmed a district court’s dismissal of the firemen’s complaint, doing so in a perfunctory and unpublished order that acknowledged none of the large constitutional questions involved.”

    BECAUSE THE (UNANIMOUS) PANEL CHOSE TO DEFER TO SECOND CIRCUIT PRECEDENT. THEY DECIDED IT WAS NOT THEIR CALL AND KICKED THE QUESTION UPSTAIRS.
    ARE YOU IN FAVOR OF JUDICIAL ACTIVISM NOW?

    idiots

    duvel (b1153c)

  24. ZOMG !!! duvel SURE SHOWED YOU GUYS !!! ALL CAPS IS PROOF THAT YOU ARE TEH SUXXOR AND duvel IS TEH BRILLIANT !!! NOW THAT YOU CAN NO LONGER WIPE YOUR ASS WITH THE CONSTITUTION AND IT WILL RETURN TO ITS PROPER LIVING FORM YOU RETHUGLIKKKANS SHOULD JUST GO AWAY SHUT UP NEVER TO BE SEEN OR HEARD FROM AGAIN BECUZ YOU ARE TEH SUXXOR BECAUSE duvel TOLD US SO.

    JD (fdabd3)

  25. Lest you think I am kidding about the Berkeley Law Raza Law Journal

    http://www.boalt.org/LRLJ/about.php

    Note that their mission is to:
    To publish articles written by Latina/o students, scholars and practitioners.

    Submissions are accepted from students, practitioners, and scholars of all racial and ethnic backgrounds. Due to the low numbers of Latinas/os in legal education, the BLRLJ particularly supports the voices of Latina/o scholars in legal academia. [my emphasis]

    In other words, ‘whitey, you can submit, but you ain’t gonna get published’.

    Also notice that the La Raza Law Journal website is hosted by Boalt, i.e. a taxpayer funded institution.

    hortense (aka horace) (6fdfda)

  26. It is interesting to note that Sotomayor’s bigotry is not demonstrably differnt than horace’s.

    Well JD, maybe when Sotomayor and a thousand other’s like her, black, ‘Latino’ and Asian etc stop, I’ll stop. Until then I will try to educate my own folks who are still believe in the ‘race blind’ claptrap, or worse are self-hating white liberals.

    hortense (aka horace) (6fdfda)

  27. It is odd how this one feels compelled to prove its racism over and over and over and over.

    JD (fdabd3)

  28. ‘Racism’ is just another word for white’s sticking up for themselves and the civilization their ancestor’s created.

    It is odd how so many white folk are bent on their own self-destruction.

    hortense (aka horace) (6fdfda)

  29. JD, I used caps when writing a statement concerning the issues at hand. You responded to the caps but not the statement.

    Discussion here:
    http://crookedtimber.org/2009/05/26/sotomayor/

    and here:
    http://www.prospect.org/csnc/blogs/tapped_archive?month=05&year=2009&base_name=the_sotomayor_strategy

    Not that you care if I take you seriously but there is a reason this site is proud to represent what remains of the republican right.
    Most people don’t take you seriously, and that’s your problem, not theirs.

    Duvel (b1153c)

  30. hortense, just FYI – apostrophes are for possessive, not for plurals.

    carlitos (a0089e)

  31. Jonathan Turley on Sotomayor:

    “My main concern is the lack of intellectual depth in her past opinions. Objecting to the intellectual content of opinions is not the same as objecting to the intellect of an individual. Smart people can have little vision in the law or other fields. No one would suggest that Sotomayor is not incredibly bright. It is her legal vision and the depth of her legal philosophy that is at issue in confirmation debates.”

    His complete post is worth reading because he evaluates some of Sotomayor’s decisions and looks at the big picture. In sum, he sees her as an historic pick but not someone who will be a force on the Court, at least not initially. (His choice for a game-changer who could serve as a counterpoint to Justice Scalia was Judge Diane Wood.)

    I’m also interested in his political view of the appointment:

    “Judge Sonia Sotomayor will be much more controversial and divisive for confirmation in my view. This was the highest risk nomination that Obama could pick.”

    I think that’s an important point. Obama has a clear majority in the Senate so going with the riskiest choice makes sense, politically, because he may not have such a compliant Senate when the next appointment comes around.

    DRJ (2901e6)

  32. duvel – Thank you for your concern. It warms my dirty little heart.

    I will respond to your in the same manner in which you did in your first post.

    IDIOT

    JD (acaf96)

  33. “(His choice for a game-changer who could serve as a counterpoint to Justice Scalia was Judge Diane Wood.”

    “Judge Sonia Sotomayor will be much more controversial and divisive for confirmation in my view. This was the highest risk nomination that Obama could pick.”

    That’s what you call “cognitive dissonance”
    As a little girl she wanted to be cop. Diabetes blew that up. So she became a prosecutor.
    She’s such a leftist.

    Duvel (63f90e)

  34. Cops and prosecutors cannot be Leftists?

    JD (acaf96)

  35. Has the media asked her or Teh Uno how a Latina woman makes a better jurist than a white male? Has anyone yet asked her why she believes that policy is made in the Courts, rather than the Legislature?

    JD (acaf96)

  36. Duvel,

    Your quibble is with Jonathan Turley since the opinions you find objectionable are his.

    DRJ (2901e6)

  37. Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.

    Imagine if Justice Roberts had said this. I wonder what the inherent physiological or cultural differences are.

    JD (acaf96)

  38. JD, did you see these questions the WSJ would like to see asked of Sotomayor? You posed some interesting ones last night and these would further shed light on her thinking (especially #2). Of course none of them will be asked…

    – Do you believe that judges should use “empathy” to decide cases?

    – Do you believe that interpretations of the Constitution should evolve to keep up with the times? . . .

    – Should Supreme Court justices be bound by precedent?

    – What is the court’s role when interpreting ambiguous laws?

    – What matters most, the law or the result?

    Dana (aedf1d)

  39. White House spokesman Robert Gibbs about Newt Gingrich’s criticism of this nomination …

    “I think it is probably important for anybody involved in this debate to be exceedingly careful with the way in which they’ve decided to describe different aspects…

    Remember when Ari said something about how people should be careful with their choice of words, and the Left went absolutely batsh*tkrazy?

    JD (acaf96)

  40. Dana – Thank you for those, very interesting. Probably racist. This is precisely what I think that she should be asked in her confirmation hearings.

    You once said

    “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.”

    Why?

    You also once said

    Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life

    If someone said to you that they hoped that a white male with the richness of his experience would more often than not reach a better conclusion than a Latina/black/asian/polish/polka dotted female who hasn’t lived that life, would you not scream RACIST in their face?

    JD (acaf96)

  41. We must all strive to make the world a better place for fat, ugly Puerto Rican women, with Type 1 diabetes, JD, you heartless elitist.

    nk (e71733)

  42. What’s with the infestation of beer trolls? You’ve got DBG and now a Belgian Ale?

    daleyrocks (5d22c0)

  43. nk – I’m sure JD has done worse.

    daleyrocks (5d22c0)

  44. Seriously, maybe the lady is not resentful about the miserable lot in life she inherited, and maybe she is disciplined enough not to go into hypoglycemic psychosis, but why the hell do we need to chance it?

    nk (e71733)

  45. All this proves is that a Havard Law School education does not guarantee you understand the US constitution, have any respect for the law, nor that the requirements for admission to Havard Law could not be met with someone with the IQ of a slug if Sotomayor is an example of their selection process.

    Thomas Jackson (8ffd46)

  46. #45 Yale, I think.

    HeavenSent (1e97ff)

  47. and princeton, summa cum laude. But yet thomas jackson still thinks he is right, no doubt.

    imdw (e66d8d)

  48. Those diplomas are all important when a Leftist has them. When a Republican has them, it makes them the mostest stupideset dummerest President EVAH.

    JD (acaf96)


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