In their reporting of Supreme Court nominee Sonia Sotomayor's 2005 statement that the “court of appeals is where policy is made,” several media figures and outlets have advanced the falsehood that her statement represented, in the words of Fox News' Sean Hannity, “the definition of judicial activism.” In fact, numerous legal experts have stated that Sotomayor's comment was, in the words of Hofstra University law professor Eric Freedman, “the absolute judicial equivalent of saying the sun rises each morning” and “thoroughly uncontroversial to anyone other than a determined demagogue.”

From Sotomayor's remarks, made in response to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship at a February 25, 2005, Duke University School of Law forum (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much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control.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.

In a May 26 article, PolitiFact.com concluded that it was “misleading” for the Republican National Committee to use Sotomayor's statement “to suggest it means she would be an activist judge on the Supreme Court.” PolitiFact.com further reported:

So keep in mind the audience and the question here, said Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court. Goldstein watched the full video, and simply sees it as Sotomayor noting that in comparison to district court judges, “there's more policy involved” in the appeals courts.

“The truth of the matter is, in the court of appeals, they are dealing with gaps and ambiguities in the law,” Goldstein said.

There's a lot for judges to interpret. Appeals court judges often have to make a call when a statute is unclear. In a sense, the policy is set by those calls made by the judges, even if they don't want to.

To use that one line from Sotomayor to paint her as an activist judge is misleading, he said.

“She's not a sweeping visionary ideologue in any way,” Goldstein said. “Conservatives who are genuinely concerned about the direction of the Supreme Court, they are sort of grasping at straws here. That's an awful lot to put on one sentence.”

David Garrow, a historian who follows the Supreme Court, agrees.

There has always been two schools of thought on the role of judges, Garrow said: those who see the law almost as an academic exercise, trying their best to mechanically apply the law; and the legal realists, who believe interpreting the law involves making choices, discretion.

“What she (Sotomayor) said there is simply the honest version of what any judge knows and realizes,” Garrow said. But “you're not really supposed to acknowledge it on the record.”

It's unfair to extrapolate that comment to suggest Sotomayor would mandate policy, he said.

“To anyone who knows the intellectual history of judicial decision-making, she's just being honest, not activist,” Garrow said.

Similarly, in a May 26 article, The Huffington Post reported that “for legal experts, there is nothing actually controversial to what Sotomayor said”:

The remarks, four years later, have hit the central nerve of the conservative psyche. Figures within and outside the GOP have already announced -- even before Sotomayor was tapped to be Barack Obama's nominee for the Supreme Court -- that they would be painting her as an activist from the bench.

But for legal experts, there is nothing actually controversial to what Sotomayor said. Her political crime, if there were one in this case, was speaking the truth.

“She's not wrong,” said Jeffrey Segal, a professor of law at Stony Brook University. “Of course they make policy ... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy.”

As Segal noted, one of the most recent cases heard by the Supreme Court -- itself a court of appeals -- involves the strip search of a 13-year-old who school officials believed was carrying ibuprofen. “There is no clear knowing statement whether officials can be sued for that sort of behavior,” he noted. “So when justices come up with a decision on that, they would be making policy.”

Eric Freedman, a law professor at Hofstra University, was equally dismissive of this emerging conservative talking point. “She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals ... It is thoroughly uncontroversial to anyone other than a determined demagogue.”

Freedman, who was a classmate of Sotomayor's at Yale Law School, noted that while the Supreme Court will decide roughly 90 cases a year, the court of appeals will weigh in on “many thousands.” They are, indeed, “the final stop for the most important decisions in the federal system.” They also are the forums where vagaries and gray areas of the law go to be clarified.

“One element of judging, obviously, is issuing precedent,” Freedman explained. “But if the thing were squarely disposed of by existing precedent they probably wouldn't go to the court of appeals for it. Their lawyers would say, forget it ... So this is where you get clarification for cases without precedent.”

“I would be surprised if you got a different opinion from a fair-minded observer in the legal world,” he added.

Moreover, as Media Matters for America has noted, 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.

Additionally, as Media Matters noted, according to NBC News justice correspondent Pete Williams, "[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, Case Western Reserve University law professor Jonathan Adler wrote in a May 3 post on the legal blog The Volokh Conspiracy that "[s]ome seem to think that this is a damning statement and evidence of closet 'judicial activism.' I don't." Adler's post, in full:

Courts Are “Where Policy Is Made”:

A video of Sonia Sotomayor, a judge on the U.S. Court of Appeals for the Second Circuit widely viewed as a short-listed for the Supreme Court, is making the blogospheric rounds. In the clip, she says that the courts of appeals are “where policy is made.” Some seem to think that this is a damning statement and evidence of closet “judicial activism.” I don't. As presented in the clip, it 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. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications -- and deciding the case will, in many instances, “make policy.” But this is wholly consistent with the idea that a judge's responsibility is to interpret and apply the law without regard for those policy consequences. Further, given the context of Judge Sotomayor's remarks, it is totally understandable why some prospective employers would want to hire individuals who are exposed to these sorts of cases. So, in sum, I don't think the statement on this video clip is a big deal. Move along.

From the May 26 edition of Fox News' Hannity:

HANNITY: Now, as we first reported on this program just a few weeks ago, Judge Sotomayor said this about where policy comes from.

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, I'm not advocating it, I'm -- you know. OK.

HANNITY: Now, that is the definition of judicial activism. Or take her comments in Berkeley in 2001 when she said, 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.”