During Fox News' July 12 special, Fox News Reporting: Judging Sotomayor, co-host Bret Baier aired a cropped clip of Judge Sonia Sotomayor's 2005 statement that “the Court of Appeals is where policy is made” to claim that she “apparently confess[ed]” to “legislating from the bench.” In fact, the context of Sotomayor's comments makes clear she was simply explaining the difference between district and appeals courts after being asked to contrast the experiences in clerkships at the two levels. Moreover, Sotomayor's comments are in line with federal appellate courts' “policy making” role, as described by the Oxford Companion to the Supreme Court of the United States (2005) and explained by numerous legal experts.

Indeed, University of Texas-Austin law professor Frank B. Cross has written that "[t]he circuit courts play by far the greatest legal policymaking role in the United States judicial system." According to Jonathan Adler, a professor at Case Western Reserve University School of Law, Sotomayor's 2005 remark “seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation.” Adler has been honored by the Federalist Society, advised the Cato Supreme Court Review, and strongly supported the nominations of Chief Justice John Roberts and Justice Samuel Alito. Other legal experts have similarly stated that Sotomayor's comment is not controversial, as The Huffington Post and PolitiFact.com have noted.

Baier also aired a cropped clip of President Obama's May 1 statement that he views “empathy” as “an essential ingredient for arriving at just decisions and outcomes” before airing video of The National Journal's Stuart Taylor asserting that "[t]he empathy line of argument may suggest to some, well, not really; we'll do better justice to the poor than to the rich. And so, that's why it's troublesome, I think." Baier later stated, "[T]hat is the issue. Would a Justice Sotomayor, in the name of empathy, see fit to place her thumb on the scales of justice from time to time?" But Baier ignored the statement Obama made immediately following the one he aired, in which Obama said: “I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.”

Further, as Democratic strategist Kirsten Powers noted later during the special while discussing Sotomayor's “wise Latina” comments, during their confirmation hearings, Justices Clarence Thomas and Alito each acknowledged the significant impact their background and personal experiences have had on their judicial thinking. Alito asserted during his 2006 confirmation hearing: “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” During Thomas' confirmation hearing, Sen. Herb Kohl (D-WI) asked, “I'd like to ask you why you want this job?” Thomas replied in part: “I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does.”

Additionally, numerous Republicans -- including former Sens. Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH) -- have previously praised compassion as a judicial attribute and highlighted the importance of the personal experiences of judicial nominees.

From Fox News' July 12 special, Fox News Reporting: Judging Sotomayor:

[begin video clip]

BAIER: In a 2005 speech at Duke, Sotomayor also ridiculed the notion that the role of the judge is simply to interpret the law.

SOTOMAYOR: 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.

BAIER: Conservatives have long accused liberal judges of legislating from the bench, but they rarely if ever hear one of those judges apparently confess to it. Some of her critics on the right think Sotomayor's speeches at Duke, Berkeley, and elsewhere, should disqualify her from the Supreme Court. At the same time, some of her supporters on the left think Sotomayor just tells it like it is.

Either way, it is Sotomayor's speeches and her activism, more than her legal rulings, that seem to project most forcefully a characteristic President Obama says he prizes in traditional appointees: empathy.

OBAMA: I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.

BAIER: That's a troublesome approach to judging that should give Americans pause, says Stuart Taylor, a respected legal commentator from National Journal magazine.

TAYLOR: They take an oath that they will apply the law equally, do equal right to the rich and to the poor. The empathy line of argument may suggest to some, well, not really; we'll do better justice to the poor than to the rich. And so, that's why it's troublesome, I think.

BAIER: Right. A big corporation comes in, in a case, and if the judge is seen as empathetic, it's not often that the big corporation is the receiver of the empathy.

TAYLOR: Yeah. That's right. And sometimes, the big corporation is right. Empathy shades into favoritism. It has been taken by a lot of people as meaning that the finger is on the scales a little bit.

[end video clip]

BAIER: And, Megyn, that is the issue. Would a Justice Sotomayor, in the name of empathy, see fit to place her thumb on the scales of justice from time to time?

MEGYN KELLY (co-host): Yeah. And that is exactly what the Senate Judiciary Committee will be looking into during these confirmation hearings that begin tomorrow, hearings that in the past few decades have been plagued with controversy. That's next on Fox News Reporting.

[...]

BAIER: Clearly, one of the first questions in these hearings to Judge Sotomayor is going to be about a certain quote, part of a speech she gave back in 2001, and she's delivered it at least a half dozen other times. Some have called it a 32-word issue for her, quote: “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.”

Question to the panel: How do you expect her to explain this tomorrow, and will that answer really be a barometer for how these hearings go? Charles.

CHARLES KRAUTHAMMER (Fox News contributor): Well, I think it's going to be the toughest issue for her because she used the word “better.” She's going to try to explain it as she was simply talking about how her rich experience, her ethnic past, the poverty of her childhood -- all of that -- enriches her life, and she has a better empathy, understanding of the law and of people's circumstances.

But she used the word “better,” and that -- and there's no explaining that away. It means a superiority; and it is a reflection of the identity politics of liberals and Democrats in which there is sort of ethnic and racial groups are endowed with attributes of wisdom, and also spoils system that are not according to white males.

Now, that's going to be hard to explain. I think she will fudge it and successfully do so, but the fact is, it was not off the cuff. It was not a random statement. As you said, it was said over and over again. It's her core belief.

BAIER: Kirsten.

POWERS: I mean, I think it's true that it probably was her core belief, and maybe it still is 'cause she's recently said it, and I think it's sort of endemic of something that you see in liberal politics -- and I'm a liberal. And it's sort of -- she's almost a victim of her generation, I feel like, of her time; or this is a very common way of thinking. And I think that people of my generation maybe have gotten a little bit away from it. And so, it's even offensive to people like me to hear things like that, but people in her generation don't think so.

And I think Charles is right. She's going to fudge it. She's going to just say, “Look. I misspoke, or I meant to say that, you know, we all gain from our experience. Look at Clarence Thomas. In his hearings, he talked about, you know, his upbringing, the poverty. With Alito, they discussed his blue collar background and how that informs it, and we all are a product of those experiences and, ultimately, you have to look at my record.”

And that's what I would tell her to do. I would say, “Please just look at my record.” And in analysis of cases dealing with discrimination cases, it was found that she and the panel, out of 96 cases, they rejected the claim of discrimination in 78 of the -- in 78 of them. So, her -- if you can just redirect it to her rulings, I think that will work better for her.