Hatchet Job


The Politico tells us that after seeing a truncated clip of Sonia Sotomayor at a panel discussion about clerking in which she says that “the court of appeals is where policy is made,” Sen. Orrin Hatch declared that he had a “problem” with Judge Sotomayor’s statement.

The Anonymous Liberal has a problem with the lack of context:

… The context, as Orin Kerr helpfully explains in this post, is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Courts of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don’t just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it’s overruled by the Supreme Court (which is rare).

Of course, the larger issue here is the unfortunate existence of legal literalists who do not understand what case law is:

… Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it’s really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.

But in Simplistic Republican World, none of this actually happens. Good conservative judges don’t “make policy,” they simply enforce the law. The law is apparently always clear. Indeed it’s a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply “enforce the law” (because they wouldn’t dream of “making policy”), so the outcome should be very predictable.

Undoubtedly conservatives will point to Sotomayor’s reaction to her own words as evidence that she was letting slip some secret about how liberal judges actually operate. But the obvious truth is that she was merely anticipating that some clown like Orrin Hatch might someday twist her [words] to mean something they don’t. She was talking about how all judges operate at the Court of Appeals level. If you’re not thinking about the policy implications (i.e., the [precedential] effect) of your rulings, you’re not doing your job.

Darren Hutchinson uses several real-life cases (including Roe v. Wade) to demonstrate why “even conservative judges make policy,” and why “making policy” is entirely different from imposing one’s own personal policy preferences on the law. It’s well-worth reading in full.

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