Sotomayor: “Court of Appeals is where policy is made”

May 28, 2009

Judge Sotomayor’s controversial 2005 comments and Robert Gibbs’ comments on them. Sotomayor was on a panel talking to Duke University Law School students about clerkships in the district and the appellate (circuit) court. She had been serving on the US Court of Appeals since 1998 and was fully aware she was being videotaped.

thanatogenos

JUDGE SOTOMAYOR:

Court of Appeals is where policy is made.

And I know, and I know this is on tape and I should never say that because we don’t “make law” I know.

I not promoting it I’m not advocating it.

Having said that, the court of Appeals is, where before the Supreme Court makes the final decision, the law is percolating – it’s interpretation, it’s application.

…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’re always thinking about the ramifications of this ruling on the next step in the development of the law.

Gibbs press briefing (May 26) I might be confused but appellate and circuit courts refer to the same thing so his answer makes no sense.

JONATHON: The other quote that’s kind of getting a lot of attention is the YouTube video in which she says that appellate courts are where laws are made — or where policy is made. And she seems to acknowledge that this is kind of verboten because it’s on tape. And I wonder, first, did the President see that YouTube video, was it part of the vetting process? And second, does the President believe that she is saying what she is saying, that the appellate court is where policy is made?

MR. GIBBS: Well, let me broaden your question with this answer, because I know there are a lot of people that will look into the quote and I think it’s important to look at not just what’s up on YouTube, but the full context of the discussion that’s being had at the point in which she talks about this.

There are two justices speaking to students who are thinking about applying for and taking clerkships. The previous speaker talks about the notion that there are circuit court and appellate court clerkships. And appellate court — the point she makes is that appellate court — the appellate courts deal with not individual cases, as do circuit courts, but instead complex legal issues and constitutional theory that the appellate courts are where those are discussed.

So I think if you — again, I appreciate a very short, out of context, small YouTube clip, but I think if you, again, look at the full context of the full quote you find that it’s a discussion between clerkships in the circuit and the appellate court. And I think she recognizes that even as she’s explaining those differences that the word could be misconstrued and she seemed prescient to note that it would be misconstrued.

But as I said earlier to a question, I think if one looks closely at 17 years of judicial opinion you’ll see that this is not somebody that you could reasonably argue advocates for or is engaged in legislating from the bench. I think that’s what’s important for anybody to understand.

Q But in a political context — I mean, this is going to confirmation in the YouTube era — and is there some concern that that is the image of Sotomayor, running around –

MR. GIBBS: No, because even if I can’t convince some people in this room, the President is very convinced that people that will look at the full context of this and not rely on, as I said, a small, short, out of context YouTube clip, and more importantly look at the basis of her entire record. I think you come to a broader understanding of who she is and what she meant.

Here he goes into his usual sexist sarcastic mode when he gets pressed on an issue. He says her name and then personally attacks her. It’s hard to believe that he represents the highest office in the land – his press conferences are like frat boy chats.

APRIL: And the second question. Back on this YouTube video that you’re shooting down — yes, one of the videos is short in length, and another one is longer. And no matter what — how long it was, these were her words, and disregarding the video itself, she did say it herself. And you speak of her experience. Now, because of her experience, do you think she has the authority to speak of the inner-workings to say that the appeals court does make policy?

MR. GIBBS: Well, again, April, certainly you’ve seen the video. I understand it’s her speaking.

Q She recognized the cameras and the –

MR. GIBBS: Right, because she understands that what she’s about to say is likely and largely to be misconstrued — mission accomplished. (Laughter.) But I would certainly say that — again, what I’m saying is, and I think what she would tell you, is if you look at the full context of what is being discussed here, I appreciate that in however many words I deliver in the time I’m up here today, you could clip six or eight of them together and ask somebody else about what I said. I would simply hope that you would read the full transcript of whatever my answer was and –

Q Have you seen the video, the short and the long version?

MR. GIBBS: I have. I have. And I –

Q Did she cause trouble. She’s in trouble from it, isn’t she? She’s in trouble from it, isn’t she?

MR. GIBBS: No, why — I don’t think that’s the case at all.

Q But it was her words that said, policy making, the appeals court. Policy making. You can not – you can’t spin it.

MR. GIBBS: April, just as I’m not going to judge your question, the entirety of your question, on three or four words, as you would be probably quick to scowl and cross your arms, and without me being able to see, tap your feet –

Q Don’t attack me; talk about the issue. Don’t attack me. Talk about the issue; don’t attack me.

MR. GIBBS: I’m not attacking you. I’m simply enjoining you in the richness of the dialogue that we’re having. (Laughter.) But I think — again, to understand — I appreciate that — again, I appreciate there are likely snippets of anything that anybody says that you could eventually say, I can’t believe you just said that. And again, look at the quote. Don’t take it from me, April. Have you looked at the long version?

Q Oh, yes.

MR. GIBBS: Then I can only assume that you would come to the very same understanding of exactly what she’s talking about. And if — I think if you ask anybody in the legal world to denote the difference between what the circuit and what the appellate court does, I think in a very matter of fact, commonsense way, they will explain to you in both the short and the long version exactly what it is I just said.