Yes, Virginia

Darren Hutchinson has a good response to Orrin Hatch’s signal that — should she be the nominee — he plans to make a big deal out of Sotomayor’s comment that the “Court of Appeals is where policy is made.” This being a judicial confirmation hearing, I suppose we have to return to a level of discourse more suitable to bad junior high civics textbooks, but as adults perhaps we can all accept that high appellate courts in fact make judgments about the law that could come out either way and hence inevitably make policy. To characterize this as judges “who will substitute their own policy preferences for what the law really is” is to insult everyone’s intelligence, starting from the fact that “what the law really is” is rarely self-evident in cases that make it to a federal appeals court.

I’m especially glad that Hutchinson brought up Adarand; I’m still waiting for a conservative to respond to my challenge and explain in what sense the Fifth Amendment could be “originally understood” as forbidding all racial classifications in 1791. But, of course, conservative justices just neutrally apply the law and the fact that these applications have a remarkable tendency to concur with current Republican policy preferences is all a big coinky-dink….