Bench Memos

NRO’s home for judicial news and analysis.

White House and Schumer: Deceptions on Sotomayor


White House officials and Sen. Chuck Schumer are deliberately misleading the public, both with their absurd statement, as Ed Whelan has shown, that Judge Sotomayor was following Second Circuit precedent in throwing out the claims of the New Haven firefighters without even analyzing them. As Al Gore would say, there was “no controlling legal authority” and the cases cited were invoked by the district court, not Sotomayor. Judge Jose Cabranes correctly said the case raised “issues of first impression.”

This is particularly rich, given the second deception underway by Schumer and the White House.

Comments yesterday by the White House Press Secretary Robert Gibbs, and today by Sen. Chuck Schumer, that statements made at Duke University by Judge Sotomayor in which she said appellate courts should “make policy” were taken out of context are purposely misleading and outright misinformation designed to walk back an obvious vetting problem this White House has become known for. They say her Duke comments really meant that district courts “deal with individual cases” and appellate courts “deal with complex legal issues and constitutional theory.” But that’s just what she did NOT do — and the district court tried to do — in the firefighters case. 

Moreover, if Mr. Gibbs or Senator Schumer were to read other law review articles written by Judge Sotomayor, as well as reviewed her other speeches, it is clear and unequivocal that Judge Sotomayor has a long track record of advocating for using courts to make policy and laws. It is obvious that the reason the White House has churned up its spin machine on this is because countless polls consistently show that the American people to do not support judges making policy or law from the bench. The American people have spoken loudly and often on this subject, they want judges who interpret law as made through the people and their elected representatives, not through judges imposing their personal political views from the bench as Judge Sotomayor has consistently advocated.

We will be linking to some more of these resources on Judge Sotomayor at and at


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