Republican inanity reaches new lows
May 27, 2009 Leave a comment
The Republican attack on Supreme Court nominee, Sonia Sotomayor (you, too, can pronounce her name correctly), that she stated that Appeals court judges make policy is intellectually empty and risible, even by recent Republican standards. Of course federal circuit judges make policy. They do it everyday– it's part of the job. That's why we care so much who is appointed to these positions. I teach this every semester in Introduction to American Government (did Republicans sleep through that class?). Anonymous liberal does a great job explaining this, so I'll leave it to him:
Her point, which is unquestionably true as a descriptive matter, is
that judicial decision making at the Court of Appeals level is more
about setting policy, whereas judging at the District Court level is a
more about deciding individual cases and disputes. And the reason for
this is obvious. Decisions at the Court of Appeals level don't just
determine the fates of individual litigants; they serve as controlling
precedent for all District Court judges within that circuit. Thus any
decision by a Court of Appeals becomes the policy of that circuit, at
least until it's overruled by the Supreme Court (which is rare).
is nothing remotely controversial about this. Cases get appealed to the
Circuit Court level for one reason: because the answer to the question
being litigated is not clear. When the law is clear, no one bothers to
appeal (because it's really expensive). A Court of Appeals grapples
with the difficult questions, the gray areas in the law, and ultimately
issues rulings one way or the other. These rulings then become the
policy of that particular circuit, serving as controlling precedent in
future cases. This is just as true in the ultra-conservative Fourth
Circuit as it is the more liberal Ninth Circuit.
Simplistic Republican World, none of this actually happens. Good
conservative judges don't "make policy," they simply enforce the law.
The law is apparently always clear. Indeed it's a wonder that lawyers
even bother to appeal cases in the Fourth Circuit. After all, they
should know that the conservative jurists in that circuit will simply
"enforce the law" (because they wouldn't dream of "making policy"), so
the outcome should be very predictable.
This trope that liberal judges "make law" whereas conservative judges only "enforce law" is about as dumb as it gets and needs to end. But it will keep going as long as the mainstream media is dumb enough to play along (presumably, indefinitely).