Judges do make policy

Senator Diane Feinstein said on Face the Nation today that, of course, judges do in fact make policy.

Responding to Republican insistence that judges should not make policy, she said: "In my experience, 16 years on the [judicial] committee, that's not true. If there is no precedent, judges do make policy. If there is no precedent, an appellate court judge will, in effect, by their opinion, make policy."

Up to their usual tricks of obfuscation, when they talk about it, they say "make laws." Nobody on the Sotomayor/Obama team has said "make laws." They've said "make policy." They're not quite the same. What we're talking about is where the law is not clear and must be interpreted by judges. Whatever decision is made, that contributes to the tradition of case law and will be used in future decisions as precedent. That is how ambiguous laws evolve into policy.

Republicans set up a straw (wo)man in order to be outraged and rant about "activist" judges. No one can make a factual case that Sotomayor has been an activist judge by her record.

Poor things; they just can't help it. It's part of their nature. The only pity is that they do still have certain amount of power to obstruct and make things difficult.

Ralph