There's an interesting, if somewhat tenuous, Durham connection to the upcoming confirmation hearings for Supreme Court nominee Sonia Sotomayor. One of her past public statements now coming back to haunt her was said before a group of Duke law students during a panel discussion on campus in 2005. Props to Duke Law School for a) recognizing Sotomayor as a rising star and b) recording the discussion.

The entire video is available here, though you'll need RealPlayer to see it.

Your friendly city magazine has done you a favor, watching the entire (often rather dry) video and just picking out the parts where Sotomayor, who, at 54, is vying to become the first Latina member of the high court, speaks at length.

We'll start with the controversial statement, which came toward the end of the discussion at around the 43-minute mark. It was addressing the advantages of clerking for an appeals court judge versus a district court judge.

"All of the legal defense funds out there, they're looking for people with court of appeals experience because court of appeals is where policy is made," she said. (My emphasis.)

This, of course, has exposed her to the charge of "judicial activism," anathema to conservatives who believe judges should strictly interpret, not make, law.

Sotomayor immediately recognized the statement as a gaffe, glanced at the two judge colleagues to her left and said sheepishly, "And I know this is on tape and I should never say that because we don't make law, I know."

There was some nervous laughter before she continued: "I'm not promoting it, I'm not advocating it, I'm, you know. OK," she concluded to more nervous laughter.

Many of you might have heard that clip already. But she explained herself further, and it'll be interesting to see whether that explanation will appease critics or give them more ammunition.

"Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating, its interpretation, its application. When you're on the district court, you're looking to do justice in that particular case. So you're looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential. So the facts control.
"On the court of appeals you are looking to how the law is developing so that it will then be applied to a broad class of cases. So you are always thinking about the ramifications of this ruling on the next step in the development of the law."

I can see that "development of the law" phrase being troublesome to conservatives, or at least being exploited by folks who want to run the nominee through the ringer for whatever reason.

Should make for interesting discussion on Capitol Hill come August.

Meanwhile, what say you? Do these remarks give you pause at all about the person who very likely will become a Supreme Court justice? Or is this making a mountain out of a mole hill?

Here's a quick guide to other sections where Judge Sotomayor speaks:

2:55 - 7:50 — On her working relationships with clerks: "I seek a recommendation from my law clerks as to what the outcome should be. There are some judges who don't want that, who simply want an explanation of the law."

19:20-23:00  — On why she regrets not clerking after law school.

32:00-36:42 — On what she looks for in a clerk. "I look, for example, for people with journalism experience, because I find that they keep things simple." (Hey, good news for all those newspaper folks who jumped ship for law school.)