During the May 26 edition of MSNBC Live, NBC News chief White House correspondent Chuck Todd falsely asserted that Supreme Court nominee Sonia Sotomayor “is on tape saying, I'm not supposed to say this, but guess what, we legislate from the bench.” Todd added, “I think that's going to compel a lot of Republicans on principle; that they will actually be sort of -- they would be lying to their own principles if they somehow supported her.” In fact, in the “tape” Todd was apparently referring to -- from a February 25, 2005, Duke University School of Law forum -- Sotomayor did not say that “we legislate 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 that the “court of appeals is where policy is made.” Moreover, as NBC News justice correspondent Pete Williams noted earlier in the broadcast, "[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:

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.

Williams also noted during the 9 a.m. ET hour of MSNBC Live that “some conservatives and some Republicans” have defended Sotomayor's Duke remark as a “fair statement to make.”

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.

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

CHRIS MATTHEWS (host): Let me ask you about a couple policy questions. Do you believe that her statement along the lines that the court of appeals, where she now serves, that bench that she's on right now, is where policy is made? Is that going to be a big issue among the strict constructionists?

WILLIAMS: Absolutely. They've already made a deal out of it. They've got Internet ads running on it. That was a statement that she made before a group of law clerks as they considered what positions they might want to undertake, and she was talking about the difference between clerking for a trial judge in the federal courts and the courts of appeals. And that's where that statement come from -- came from.

But, you know, Chris, 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, you know, 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.

[...]

TODD: A lot of Capitol Hill folks tell me they would be surprised if, you know, more than, say, eight or 10 Republicans end up supporting her. Why? They have said time and again they don't believe in legislating from the bench. She is on tape saying, I'm not supposed to say this, but guess what, we legislate from the bench.

She believes it's not something she enjoys to do, but that it's something that is a reality. And I think that's going to compel a lot of Republicans on principle; that they will actually be sort of -- they would be lying to their own principles if they somehow supported her. So, you know, you're probably looking at 65 to 70 votes, but again, a win is a win, a confirmation is a confirmation. And that's a pretty overwhelming confirmation, if that's what the numbers are.