During the May 7 edition of Fox News' Happening Now, host Jane* Skinner asserted that 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor, reportedly a potential candidate to replace retiring Supreme Court Justice David Souter, “is coming under some fire for making some comments that were recorded on tape a while back, saying that it's her job, really, to make policy from the bench. Does she have a problem?” In fact, in the tape Skinner was apparently referring to, from a February 25, 2005, Duke University School of Law forum, Sotomayor did not say “it's her job” to “make policy from the bench.” 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:

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much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control.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.

From the Duke panel discussion (beginning at approximately 40:00):

CARLOS LUCERO (judge, 10th U.S. Circuit Court of Appeals): I think that the district court clerk and the circuit court clerk really do substantially similar work, but the work is worlds apart. As a district court clerk, we're in the middle of a trial, a motion is filed during the litigation, the judge has to rule on it the next morning. He's taken it under advisement. And the clerk is asked to do a memo that night on the evidentiary issue involved. It's a quick but thorough memo. The next day, a clerk in some other city -- the judge may ask for a memo on a motion for summary judgment, and the motion is very fact-dependent. It requires going through a lot of the supporting affidavits in support of a motion, and the judge wants a summary of the evidentiary issues presented. She might want that tomorrow, or she may want it a week later, and the clerk has to prepare that memo. The circuit clerk, on the other hand, is going to look at the issue somewhat more abstractly -- how, in a context of 30 cases, will our ruling on this particular motion impact other cases coming before the court. And so, you can see that the focus immediately is somewhat more global in its application, whereas this -- the district court clerk's responsibility's kind of more case-dependent, fact-dependent to that particular case. If you're going into litigation, I think that the district court clerkships are far superior to the circuit court clerkships, in the sense that the circuit clerks' only exposure to the litigation is by reading the cold record. The district court clerk has been there, done that, watched the good lawyers, watched the great lawyers, watched the mediocre lawyers, and all the while during a year of exposure to the practices is learning how not to do it as well as how to do it. On the other hand, for the circuit court clerks, those clerks generally tend to gravitate a little more to the academy, a little bit more to the public policy side of things, and they too play an important role. And I am not here to judge as between the two -- between the two experiences; I think it really depends on what you want out of your career. If, in your heart of hearts, you really want to be that crack litigator, the crack prosecutor, the crack -- not the crack public defender, but the hotshot in any of those departments, I think that district court clerkship is right where I would go.

SOTOMAYOR: I -- from my answer earlier, I don't -- 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, 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. You are jumping from one project to another at a million miles an hour on a given day. I explained to one on my friends that after a day in the district court, I actually didn't have a headache, I had a head strain. My brain in my first year felt that it had expanded past its capacity as a muscle to stretch. There was so much influx of information and new knowledge that I literally had a headache.

LUCERO: Don't hold her too responsible on physiological matters.

SOTOMAYOR: Yeah. At any rate, you jump from one emergency to another. By definition, you can't ever pay enough attention to anything, like you would like, and you have to move quickly. If you have a personality where you can do that, it's stimulating beyond belief. I have had law clerks when I was a district court judge for whom that process was just shattering because their ability to respond quickly was limited. You have to look within yourself and see if you can do it. Because if you can't, it can be a horrifically draining experience. The court of appeals is more contemplative, so you have more time to think and you have to think more deeply. But with it comes the requirement of thinking on levels, on multilevels, at a time. And some people are not suited to that either. Some people like a more direct, linear process, and the district court is better for that. As I said, there's no right and wrong, other than your choice. You're sort of looking at yourself seeing where your personality fits and thinking about your career choices and seeing which might be better. Now you could do both. So -- but that's not so easy either.

From the May 7 edition Fox News' Happening Now:

SKINNER: I'm going to put up some pictures of some women who are said, anyway, to be on the president's short list. Of course, we don't know for sure. Sonia Sotomayor, who is a judge on the 2nd U.S. Circuit Court of Appeals. Elena Kagan, solicitor general. Diane Wood is on the 7th U.S. Circuit Court of Appeals in Chicago, knows the president from teaching at the University of Chicago. And Jennifer Granholm, who is currently the governor of Michigan. The first woman I mentioned there, Judge Sotomayor, is coming under some fire for making some comments that were recorded on tape a while back, saying that it's her job, really, to make policy from the bench. Does she have a problem?

SEN. JEFF SESSIONS (R-AL): Well, that's the kind of thing that I think could cause all of us to be concerned about, and I think she would be entitled to have a fair opportunity to rebut that, and I have not studied that part of her record.

Name corrected. Media Matters for America regrets the error.