Mitt Romney’s weak attack on Sotomayer shows a startling failure to understand her statement or our judicial system. And this guy wanted to be President?!
Romney said (via CNN):
“The nomination of Judge Sonia Sotomayor to the Supreme Court is troubling. Her public statements make it clear she has an expansive view of the role of the judiciary. Historically, the Court is where judges interpret the Constitution and apply the law. It should never be the place “where policy is made,” as Judge Sotomayor has said. Like any nominee, she deserves a fair and thorough hearing. What the American public deserves is a judge who will put the law above her own personal political philosophy.”
Her comment in full context (emphasis mine):
“All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made,” she said, laughing a bit through the next part: “And I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it. I know.”
The thing is, she’s right (Huffington Post):
“She’s not wrong,” said Jeffrey Segal, a professor of law at Stony Brook University. “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.”
As Segal noted, one of the most recent cases heard by the Supreme Court — itself a court of appeals — involves the strip search of a 13-year-old who school officials believed was carrying ibuprofen. “There is no clear knowing statement whether officials can be sued for that sort of behavior,” he noted. “So when justices come up with a decision on that, they would be making policy.”
What Sotomayor was doing was acknowledging a reality of our current legal system. She wasn’t advocating for it. That’s a pretty important distinction Mitt Romney failed to grasp.