WSJ, USA Today advance conservatives' distortions of Sotomayor's Duke remark

In a May 27 article, The Wall Street Journal asserted that "[c]onservative opponents ... will have ammunition as they seek to paint [Supreme Court nominee Judge Sonia] Sotomayor as a liberal activist and strong backer of affirmative action who would use the Supreme Court to make law, not interpret it. A video from Duke University in 2005 shows Ms. Sotomayor proclaiming the 'court of appeals is where policy is made.' " USA Today similarly stated in a May 27 article that Sotomayor's remarks during the February 25, 2005, Duke University School of Law forum "are likely to draw scrutiny during the confirmation process, especially among conservatives who question whether she would interpret the Constitution strictly or try to change policies through rulings." Neither article noted that the context of Sotomayor's comments makes clear that she was simply explaining the difference between district and appeals court justices.

As Media Matters for America has documented, Sotomayor was responding to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship. Sotomayor's remarks from the Duke panel discussion (beginning at approximately 40:00):

SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, 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'm not promoting it, and I'm not advocating it, I'm -- you know. OK. 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 is right. I often explain to people, when you're on 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much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control.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 are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

The Wall Street Journal itself noted the context of Sotomayor's remarks in a May 26 article:

The now infamous Duke speech: For starters, there's the speech she gave at Duke back in 2005. Click here for the YouTube video. The controversial quote: "Court of appeals is where policy is made. And I know this is on tape and I shouldn't say that because we don't make law . . . I know. . . I'm not promoting it, I'm not advocating it . . . "

In that same speech, Sotomayor explained the difference between judging at the trial court level and judging at the appeals court level: "When you're on the district court, you're looking to do justice in the individual case, so you're 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 not 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. So you're always thinking about the ramifications of this ruling on the next step of the development of the law."

According to NBC News justice correspondent Pete Williams, "[E]ven some conservatives and followers of strict constructionism have said that [Sotomayor] was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the, you know, above the other courts, do set policy; they do make precedent that governs the other courts." Indeed, the Oxford Companion to the Supreme Court of the United States (2005) notes that federal appellate courts do in fact have a "policy making" role.

As Media Matters has noted, CNN, Fox News, MSNBC and ABC are among the other media outlets that have misled on Sotomayor's remark that the "court of appeals is where policy is made."

From the May 27 Wall Street Journal article:

In introducing his first Supreme Court nominee, Mr. Obama highlighted the 54-year-old New Yorker's "extraordinary journey" from a Bronx housing project to the Second Circuit Court of Appeals in New York. "It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works," he said.

Conservative opponents questioned the usefulness of "empathy" as a qualification. They will have ammunition as they seek to paint Ms. Sotomayor as a liberal activist and strong backer of affirmative action who would use the Supreme Court to make law, not interpret it. A video from Duke University in 2005 shows Ms. Sotomayor proclaiming the "court of appeals is where policy is made."

"We must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law, calling balls and strikes fairly without regard to one's own personal preferences or political views," said Alabama Sen. Jeff Sessions, the top Republican on the Judiciary Committee. Mr. Obama hopes for hearings in July.

Judge Sotomayor would replace Justice David Souter, a George H.W. Bush nominee who became a reliable vote in the court's liberal block. She likely would echo his positions on divisive issues including abortion, affirmative action and gun control.

From the May 27 USA Today article:

Sotomayor's remarks at a 2005 legal conference at Duke University's law school are likely to draw scrutiny during the confirmation process, especially among conservatives who question whether she would interpret the Constitution strictly or try to change policies through rulings.

"The court of appeals is where policy is made," Sotomayor said during the conference.

She then quickly added, "I know this is on tape and I should never say that, because we don't make law, I know. Um, OK. I know. I'm not promoting it, I'm not advocating it."

White House spokesman Robert Gibbs said Sotomayor's career proves "this is not somebody that you could reasonably argue advocates for or is engaged in legislating from the bench."