CNN, Fox News, MSNBC misrepresent Sotomayor remark on role of appeals court justices
Judge Sonia Sotomayor made on the role of the circuit court during a 2005 forum out of context. The context makes clear that Sotomayor was actually explaining the difference between district and appeals court justices, not claiming that she "believes court of appeals justices should make policy."
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much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control.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.
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http://mediamatters.org/research/200905260045
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