The Politics of Courts 'Making' Law

Article excerpt

Byline: Associated Press

WASHINGTON Do judges make policy? Will a white man and a Hispanic woman who look at the same facts and apply the same law often come up with different conclusions?

Judge Sonia Sotomayor has said the answer to both questions is "yes," and that rankles conservatives. Critics say the remarks offer a window into her judicial philosophy. Supporters say shes only reflecting the reality of the judicial branch.

Both sides are right.

The comment: "The court of appeals is where policy is made," Sotomayor said during a 2005 Duke University panel discussion.

The spin: "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written," said Wendy Long, counsel to the conservative Judicial Confirmation Network. "She thinks that judges should dictate policy."

The truth: Because most cases never get to the Supreme Court, appeals courts are often the final word on public policy questions. Can you snowmobile in national parks? Can the military force soldiers to get vaccinated for anthrax? Can terminally ill patients demand access to experimental drugs?

The legislative and executive branches put laws and regulations on the books, and the courts decide how it all works.

Is that the same as "making" policy? When an appeals court struck down the Bush administrations clean air rules, it threw out an entire regulation. It changed the rules governing power plants and sent Congress scrambling. The decision was based on a reading of the law, but its hard to argue the effect was anything other than a court making policy.

The words, however, suggest a judicial philosophy that cause conservatives to cringe. Conservative judges avoid using verbs like "make" or "write" when describing their effect on the law.

Consider Chief Justice John Roberts during his confirmation hearing: "Judges are like umpires. Umpires dont make the rules; they apply them."

Even President Barack Obama, in introducing Sotomayor, said a "judges job is to interpret, not make, law"

Bottom line: Sotomayor gave a fairly accurate thumbnail description of how the appellate system works, but those who hoped for a Roberts-like umpire have legitimate grounds to criticize her comments. Even Sotomayor seemed to know she touched on a controversial topic. …