Power of appeals court looms large

By FANNIE FLONO

It’s laughable some of the things already being said about Sonia Sotomayor. The most bizarre is that she’s “no intellect.” When you graduate with the highest undergraduate award at Princeton University, help edit the Yale Law Review and get first-rate marks as a prosecutor in New York and as a litigator for a boutique commercial law firm, lack of intellect isn’t the label that should come to mind. It’s mindboggling in its absurdity. You can’t get those credentials coming from her background without being plenty smart — and showing it.

Still, lots of questions will — and should — be asked about Sotomayor as she seeks to become the third woman on the U.S. Supreme Court and the first Hispanic (or second, if you count Benjamin Cardozo of Portuguese descent).

Her words off the bench are already being challenged — as much or maybe more than the words in her opinions from the bench. I’ve been surprised by one comment that got some knickers in a twist.

No, it’s not the comments she made about “a wise Latina woman” or that “our experiences as women and people of color affect our decisions.” Some of the uproar about that may die down now that it’s been unearthed that Justice Samuel Alito made similar comments about his family’s immigrant experiences and discrimination influencing his judgments on the court. No, the comment I’m referring to is one Sotomayor made in North Carolina at Duke University. She said at a 2005 conference that a “court of appeals is where policy is made.” She immediately added that “I know this is on tape and I should never say that, because we don’t make law.”

The power

The comment was refreshingly honest about the power of appeals courts — a power that often gets lost in the hoopla about Supreme Court nominees.

Some say her remark reveals her as a liberal activist judge, but anyone who’s followed the court system can see the reality of her words. Few cases make their way to the Supreme Court. But many reach the appeals court — and that’s where interested parties look to decide how to proceed and, yes, to set policy on a variety of issues.

The appeals court stamp is clear on many issues — clean air rules and snowmobiles in national parks, to name a couple.

Presidents understand the power of the appellate court. Under George W.Bush, Republican-appointed judges, who are mostly conservative, grew to make up more than 60 percent of the bench. It was 50 percent when he was inaugurated. Conservative judges also control 10 of the 13 circuits. One conservative scholar said the appeals courts are more in line with a conservative judicial ideology than at any other time in recent history.

A Brookings Institution study finds that under Obama, though, the GOP hold could be reduced and even a Democratic majority created by 2013.

Sotomayor ended her policy-making remarks at Duke with this: “I’m not promoting it, and I’m not advocating it. I’m — you know.” We do know, or should. She just said it out loud.

X Fannie Flono is a Charlotte Observer associate editor. Distributed by McClatchy-Tribune Information Services.