Lauer falsely claims Sotomayor said appellate courts make policy rather than interpreting laws

On the May 27 edition of NBC's Today, co-host Matt Lauer falsely asserted that Supreme Court nominee Sonia Sotomayor said "in 2005 on tape at Duke University" that "the court of appeals is where policy is made -- not laws are interpreted -- policy is made." Lauer later said to guest Sen. Chuck Schumer (D-NY), "Senator Schumer, we have an expression in television, 'caught on tape,' OK? Those are her words caught on tape from 2005 -- 'the court of appeals is where policy is made.' I mean, does that make her an activist judge -- 'activist' being a radioactive word in some quarters?" In fact, in the "tape" Lauer was referring to -- from a February 25, 2005, Duke University School of Law forum -- Sotomayor did not say that "the court of appeals is where policy is made -- not laws are interpreted." Rather, responding to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship, Sotomayor said that the "court of appeals is where policy is made" and immediately added, "And I know -- and I know this is on tape and I should never say that because we don't make law, I know." Indeed, in his response to Lauer, Schumer noted, "[A]s is sort of characteristic of our politics these days, they left out the second line; she says, 'I don't advocate that.' In other words, she says, 'Policy is made in the court of appeals, but I don't advocate that.' "

Lauer's falsehood came the day after the false characterization of Sotomayor's comments by NBC colleague Chuck Todd, who claimed that Sotomayor said that "we legislate from the bench."

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.

Moreover, according to NBC News justice correspondent Pete Williams' report from the previous day, "[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."

From the May 27 edition of NBC's Today:

LAUER: Senator Sessions, to go back to something you said, quote, "We must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law." I assume you're specifically referring to what she said in 2005 on tape at Duke University, where she said the court of appeals is where policy is made -- not laws are interpreted -- policy is made. Is that a disqualifier in your opinion?

SEN. JEFF SESSIONS (R-AL): Well, we need to inquire into that and give her a fair opportunity to explain it, but on its face, that's very troubling. A judge must be -- must submit themselves to the law and be faithful to the law and to serve under the law -- they are not above the law. And I think it's further exacerbated by President Clinton's [sic] promise to find someone who will use empathy in making decisions.

And I think that is a nonlegal standard, and so the combination requires, I think, those of us in the Senate to give her an absolutely fair hearing, which I intend to try to do as best I can, and to then determine whether or not she will be faithful to the law, or whether she will allow her personal or political views to influence her decision-making.

LAUER: You know, Senator Schumer, we have an expression in television, "caught on tape," OK?

SCHUMER: Yes.

LAUER: Those are her words caught on tape from 2005 -- "the court of appeals is where policy is made." I mean, does that make her an activist judge -- "activist" being a radioactive word in some quarters?

SCHUMER: Well, I'd say not at all. First, you look at her record -- she clearly puts rule of law first. Second, as is the policy -- as is sort of characteristic of our politics these days, they left out the second line; she says, "I don't advocate that." In other words, she says, "Policy is made in the court of appeals, but I don't advocate that." And so once you hear the whole tape, I think the rug will be pulled out from under that argument.