One of conservatives’ biggest problems with Supreme Court nominee Sonia Sotomayor is over a remark she made in 2005, stating that the Court of Appeals “is where policy is made.” The right-wing Judicial Confirmation Network has called her “a liberal judicial activist of the first order” who “thinks that judges should dictate policy.” Sen. Orrin Hatch (R-UT) called her 2005 comment a “problem.” Similarly, this morning, Sen. Jeff Sessions (R-AL) went on NBC’s Today Show and said it was “troubling”:
LAUER: Sen. Sessions, I go back to something you said: “We must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law.” I assume you’re specifically referring to what she said in 2005 on tape at Duke University, where she said, “The Court of Appeals is where policy is made.” Not laws are interpreted. Policies made. Is that a disqualifier, in your opinion?
SESSIONS: Well, we need to inquire into that and give her a fair opportunity to explain it. But on its face, that’s very troubling. A judge must submit themselves to the law and be faithful to the law and to serve under the law. They are not above the law.
Yesterday, however, Sessions appeared on MSNBC and undercut this talking point, admitting that the Supreme Court “sets the law for America.” He went even further on Fox News last night, telling Greta Van Susteren that Supreme Court justices basically write the Constitution:
VAN SUSTEREN: In terms of the qualifications or what the Judiciary Committee looks for in sending someone to the floor, is it different what you look for for the United States Supreme Court as opposed to the United States Court of Appeals?
SESSIONS: I think a little bit. I’m not sure I could articulate the difference. There’s certainly a difference in the district court and the Supreme Court. But I do think there’s a greater power on a Supreme Court Justice to declare the Constitution says this or the Constitution says that. And it’s almost the same — it, indeed, virtually is the same — as writing the Constitution itself.
While he may not want to undermine his conservative colleagues — and himself — Sessions is onto something. Jeffrey Segal, a professor of law at Stony Brook University, told the Huffington Post that when courts clarify laws made by Congress, they are making policy. Eric Freedman, a law professor at Hofstra University, said that Sotomayor “was saying something which is the absolute judicial equivalent of saying the sun rises each morning. … It is thoroughly uncontroversial to anyone other than a determined demagogue.”