In reports on President Obama's choice of 2nd U.S. Circuit Court Judge Sonia Sotomayor as his nominee to replace retiring Supreme Court Justice David Souter, CNN, Fox News, and MSNBC all took comments Sotomayor made on the role of the circuit court during a February 25, 2005, Duke University School of Law forum out of context. Whereas media figures suggested that the comments showed that Sotomayor “believes court of appeals justices should make policy,” context makes clear that Sotomayor was actually explaining the difference between district and appeals court justices.

In fact, in the comments the reporters were referring to, Sotomayor was not advocating making policy from the bench, but 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much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control.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.

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:

The courts of appeals have also gained prominence because of the substance of their caseload. For their first twenty five years, these courts dealt primarily with private law appeals. Diversity cases (suits between citizens of different states), bankruptcy, patent, and admiralty cases made up most of their work. However, as federal regulation increased, first during the Progressive Era, then during the New Deal, and finally during the 1960s and 1970s, the role of the courts of appeals changed as appeals from federal administrative agencies became a larger part of their caseload. Other developments that increased these courts' policy making importance were the increased scope of federal prosecutions, especially those dealing with civil rights, drugs, racketeering, and political corruption, increased private litigation over various types of discrimination; and litigation concerning aliens' attempts to gain political asylum. Also adding to their importance were their post 1954 use to oversee school desegregation and reform of state institutions such as prisons and mental hospitals, along with controversies like that over abortion.

Indeed, during the May 26 edition of MSNBC Live, NBC News chief justice correspondent Pete Williams said of Sotomayor's Duke comments: “Even some conservatives and followers of strict constructionism have said that she 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 above the other courts, do set policy; they do make precedent that governs the other courts. So it's either a very controversial statement or a fairly routine one, depending on your point of view.”

As Media Matters for America documented, Fox News host Jane Skinner misrepresented Sotomayor's Duke comments in a similar way during the May 7 edition of Fox News' Happening Now.

From the 9 a.m. hour of the May 26 edition of Fox's America's Newsroom:

MEGYN KELLY (co-host): Apparently, we don't have this clip teed up -- we'll get it for you, and we'll play it in a minute. But what she said in this controversial clip, when she was speaking at Duke years ago, was that court of appeals justices -- that's where she sits now, the court of appeals; that's right underneath the Supreme Court -- make policy.

KARL ROVE (Fox News contributor): Right -- make law. Make law.

KELLY: She said, I know it's going to be controversial -- yeah, but -- no, she said make policy. We have this out? Let's play it. Let's watch.

SOTOMAYOR [video clip]: 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.

KELLY: Well, I mean, a lot of people think she was promoting it and she was advocating it --

ROVE: Sure. Absolutely.

KELLY: -- and she believes court of appeals justices should make policy or make law, and they would counter, “No, that's what we have elected representatives for.”

ROVE: That's right.

KELLY: But Karl, that reflects -- I admire her honesty, because that actually does reflect what a lot of liberal jurists feel and their approach to judging.

ROVE: Yeah. The conference, I think, was organized, by [Erwin] Chemerinsky, who's now the dean of the University of California-Irvine law school, the founding dean out there, and he's got a very liberal view of what it is to be a judge, and she participated in this conference. Yeah, look, she's at least honest.

From the May 26 edition of CNN's American Morning:

JIM ACOSTA (CNN correspondent): Just a couple of quotes that are of interest that I think our viewers might want to know about. Our CNN political staff has put together some quotes from Judge Sotomayor from her past. Back in 2005 at Duke University, she was speaking at a panel discussion there, and she said that the appeals court is where policy is made and she even said during that discussion, “I know, I know I'm on tape. I shouldn't have said that,” but that is what she believes. So conservatives, when they hear that, they are going to take issue with that statement. They believe that policy is not made on the bench; policy is made in the legislative branch of Congress, and that it is up to judges to decide on the law, not interpret or make law, and -- excuse me, not interpret but not to make law. And so Judge Sotomayor has made a couple of statements over the years that conservatives are going to have fun with.

Earlier before that 2005 panel discussion, she was at a different public setting in which she said a judge's gender and ethnicity should be taken into consideration when ruling on cases, and so conservatives are going to have some fun with that one as well.

From the 9 a.m. ET hour of the May 26 edition of CNN Newsroom:

ACOSTA: Not a big surprise -- Sotomayor has been mentioned throughout this whole process and had emerged as one of the leading contenders in the final days and hours of this selection process. And what Republicans are saying is what they have been saying about judicial nominees for the past several years, is they don't want to see what they call a judicial activist on the bench, somebody that they say would try to legislate, try to write law from the bench instead of interpreting or deciding on law as it's presented in a court setting or in a proceeding. And what Judge Sotomayor brings to the table here is very interesting, because she has made some comments in the past that conservatives can latch on to. Back in 2004 at Duke University, she said that the appeals court is where policy is made. Well, that's going to drive conservatives crazy. In an earlier public setting, she said that, you know, you should not, as a judge, disregard your ethnicity or gender. That, too, will drive conservatives crazy. But, on the other hand, what the White House will say, what their political allies will say on Capitol Hill is that, look, Judge Sotomayor was put on the bench originally by a Republican president, George H.W. Bush. And Republicans will say, “Oh, well, what about David Souter?” George H.W. Bush put David Souter on the bench.

But, you know, you have to keep in mind, not only are we talking about the first Hispanic judge on the Supreme Court -- justice on the Supreme Court, we're also talking about a woman, and there are a number of female Republican senators who might find it very hard to vote against judge Sotomayor. Olympia Snowe and Susan Collins, two very moderate Republicans from Maine, are going to be tempted to go along with the Democrats on this nomination. And even over the weekend, Jon Kyl, the number-two Republican in the Senate, was saying on one of the Sunday talk shows that they pretty much don't have the votes to block this nomination. And as Jeffrey Toobin and Alan Dershowitz have said on this network earlier this morning, there really aren't any red flags, any known red flags about this justice at this point that would warrant a huge fight on Capitol Hill.

HEIDI COLLINS (anchor): Yeah, yeah. But you did bring up something that I think we're going to hear a lot more about, those comments made in that panel discussion at Duke University. I have some of it here in front of me. To go further than what you said here about the court of appeals being where policy is made. She said, according to this, “Because it is the court of the appeals is where policy is made. I know this is on tape and I should never say that, because we don't make law, I know. I'm not promoting it and I'm not advocating it.” It goes on to say a couple more things here. But I think we're going to hear a lot more about that.

ACOSTA: Yeah, that's right. But having said all of that, Mr. Obama was under a lot of pressure from liberals to put somebody on the bench that they could like, and, you know, somebody who has made those sort of pugnacious comments in public settings is going to be very appealing on the left side of the political spectrum. There are going to be those out there on the liberal side who have been somewhat disappointed with President Obama in the early months of his administration because of issues like Guantánamo, that they feel like President Obama is not exactly doing what he said out on the campaign trail that made him so appealing to liberals. And when they hear Judge Sotomayor making comments like that, they're thinking, “Well, maybe this is somebody who can go toe-to-toe with a Justice Scalia or Justice Roberts or Justice Alito.” Two very, very conservative justices on the Supreme Court. And what liberals have been wanting is somebody who can go toe-to-toe with those sort of justices.

From the 10 a.m. ET hour of the May 26 edition of MSNBC Live:

CHRIS MATTHEWS (MSNBC's Hardball host): Let's go to some of the possible flash points. She's been quoted as saying the Supreme Court -- well, let's say this, the court of appeals right below it -- is, quote, “where policy is made.” Let's start with that. Doesn't that rankle the original-intent folks who think the Constitution should be read literally and we shouldn't look for policy to be made on the bench?

SAVANNAH GUTHRIE (NBC News correspondent): We will hear that clip played over and over and over again in the coming weeks, and conservatives will point to it as evidence that Sotomayor is an activist judge, and that she was committing truth when she said that courts of appeal judges are those who set policy. Now, it should be said as soon as she said it, she kind of joked and said, “Well, I'm going to get in trouble for that.” So look, they will say that means she's results-oriented. She's got other controversial statements in her background, where she talks about why being a Latina, one might come to a better conclusion than a white male judge, for example, but she also has, at the same time, said it's not just those qualities that will mean someone renders a good decision but that all of it informs the decision-making. But I think that's why -- to go back to where we started, Chris -- why some would regard this as a less safe pick, a little bit more controversial, because there are those statements out there.

[...]

WILLIAMS: Even some conservatives and followers of strict constructionism have said that she 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 above the other courts, do set policy; they do make precedent that governs the other courts. So it's either a very controversial statement or a fairly routine one, depending on your point of view.

From the Duke University 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.