In her opening statement at her confirmation hearing, Judge Sotomayor declared: “The task of a judge is not to make law. It is to apply the law.” At numerous points during her hearing, she repeated the point. To cite some examples:
“Well, it’s important to remember that, as a judge, I don’t make law.”
“judges must apply the law and not make the law”
“The job of a judge is to apply the law.”
“The court is not a legislative body.”
“They [judges] can’t change law. We’re not lawmakers.”
“Policymaking, making of laws is up to Congress.”
And so on.
It would be a mistake to take any comfort from these statements, for, as her written answers to Senator Cornyn’s post-hearing questions make clear, Sotomayor was using the term “make law” and its variants in an entirely formalist manner. In her usage, no judicial opinion, no matter how wildly wrong, no matter how lawless an imposition of a judge’s own policy preference, can be said to “make law” because by definition what the courts do is “‘interpret’ law”: “I do not think of [wrongly decided] cases as courts ‘making’ law, … as that role belongs to the legislature.”
In other words, Sotomayor’s repeated statements about judges not making law are entirely tautological. They sound like commitments to a restrained judicial role, and they seem designed to leave that mistaken impression, but they in fact have no normative content at all and are merely definitional: a judge can never be said to make law because “making law” refers to the “passage of legislation” (as Sotomayor puts it in response to Cornyn’s Q9).