Walter Olson recently expressed some discontent over the hullabaloo raised by his conservative allies concerning the now infamous Sotomayor “where policy is made” YouTube video. He states:

Some conservatives keep publicizing a YouTube clip where she confides to a panel-discussion audience that appeals courts are “where policy is made.” Sorry, but that’s a standard observation among legal commentators these days—by no means limited to liberals—and, by my subjective measure, she actually comes off pretty well on that tape.

While it is certainly true that conservatives have often observed (and lamented) the fact that policy is made in the circuit courts, Sotomayor’s comments, in contrast, were clearly not a mere statement of fact. Let’s look closer at her exact language:

All of the legal defense funds out there, they’re looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t ‘make law,’ I know. [Laughter from audience] Okay, I know. I know. I’m not promoting it, and I’m not advocating it. I’m, you know. [More laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.

Were she simply stating a fact, she wouldn’t have expressed the mild regret revealed in the statement: “…this is on tape, and I should never say that.” When conservatives make the observation that policy is made by the circuit courts, we don’t exactly feel the need to whisper it. If her statement was simply an observation and nothing more, then what’s the problem with saying it in front of a camera?

After the audience laughs at her lightly mocking the idea that “we don’t ‘make law,’” she goes on to make the disclaimer, in quite a flippant tone, that she’s not “promoting” or “advocating” legislating from the appeals courts. The laughter and her response are telling, and anyone familiar with Legal Realism gets the joke that she and her audience were sharing. Legal Realism, a theory which Sotomayor has embraced in her academic writing, casts the idea of judges applying law to cases as mere subterfuge for what really occurs: the judiciary essentially functioning as another political branch, judicially amending the Constitution and other laws to meet the needs of an evolving society. In a co-authored law review article, Returning Majesty To The Law and Politics: A Modern Approach, Sotomayor stated:

Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

No one denies that society goes through certain changes that may necessitate alterations in law, but the Founders gave us a legislative branch to address such needs.

If in fact her statements in the video don’t reveal an outright “advocacy” of legislating from the bench, they do reveal the mockery that she makes of the idea that judicial hubris poses a grave threat to the rule of law. Not exactly comforting coming from someone who may soon sit on the highest court in the nation.