Progress Illinois

Like a lot of conservatives, Don Wade is pretty nervous that Judge Sonia Sotomayor won't protect the interests of white Americans if she's ultimately confirmed for the Supreme Court. This morning on his WLS' Don Wade and Roma program, the co-host asked Rep. Peter Roskam whether Sotomayor was "going to use ethnic consideration in her rulings." Roskam leaped at the opportunity to send a dog whistle to his conservative base, claiming that the Appeals Court judge won't just call "balls and strikes" if appointed to the nation's highest court. Listen here:

Internal mp3

ROSKAM: It sure seems as if she’s going to do that. And I think that -- do you remember when Justice Roberts was before the Senate and there he is and all these senators are trying to manipulate him to give these answers and trying to provoke him? And he was cool as a cucumber. He was clearly the smartest guy in the room and I think he used that umpire analogy -- you all legislate and I will interpret this and apply it to facts. I think that’s what judges do. And I think there is a great deal of comfort that the American public has that when you go before a judge, they’re just going to call them as they see them. What we don’t need is, again, an agenda moving through the judiciary. It’s not helpful, it undermines the process. And I think Sotomayor sort of tipped her hand and had one of those YouTube moments of over disclosure at a speech or panel discussion where she said look, and I’m paraphrasing, but “this is what judges do -- judges make law.” Well, that’s not right. That’s not what we’re signing up for.

The remark to which Roskam refers came during a Duke University Law School panel in 2005. Sotomayor was asked to compare the experience of clerking for a district court as opposed to an appeals court. Here's her full answer:

"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, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [laughter] 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's 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're 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. So you are always thinking about the ramifications of this ruling on the next step in the development of the law."

Contrary to Roskam, legal experts agree that Sotomayor's quote is not controversial in the slightest.

Decisions at the district court level focus on very specific cases and disputes. The court of appeals, by contrast, creates precedent for all district court judges within that circuit. In fact, the only reason an appeals court exists is because when there is a gray area in the law that doesn't satisfy the litigants involved, judges have to interpret, in Sotomayor's words, "how law is developing so that it will then be applied to a broad class of cases."

Media Matters cites several legal scholars echoing her point:

Supreme Court historian David Garrow has reportedly said, "What [Sotomayor] said there is simply the honest version of what any judge knows and realizes," adding, "To anyone who knows the intellectual history of judicial decision-making, she's just being honest, not activist." Further, Stony Brook University political science professor Jeffrey Segal has reportedly stated, "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."

According to Hofstra University law professor Eric Freedman, Sotomayor's remark is "thoroughly uncontroversial to anyone other than a determined demagogue." Apparently, Roskam has earned a new title.

On the broader point of "judicial activism," let's remember what it actually means to make law from the bench. If conservatives consider an activist judge to be one who strikes down Congressional statutes and federal regulations, they need to castigate their own. Last year, legal scholar Cass Sunstein and economist Thomas Miles looked at data about the frequency with which justices upheld federal regulations. The four liberal justices were the four most restrained. In addition, Yale Law Professor Paul Gewirtz and Yale grad Chad Golder recently reviewed 64 Supreme Court rulings from 1994-2005 in which the Court either struck down or upheld Congressional statutes. What were the results? You guessed it. The conservatives struck down far more laws than the liberals.