Ethics

Sotomayor and Judges Making "Policy" - Take 2

By Ed Brayton

While interviewing Daphne Eviatar on my radio show Thursday night, it suddenly occurred to me that there is a second and distinct reason from the one I mentioned the other day why the oft-repeated difference between "interpreting the law" and "legislating from the bench" or "making policy" is often an entirely arbitrary distinction.

Judges are often called upon to make policy from the bench and they are called upon to do that by the legislature itself. Congress often passes vague laws and leaves it up to the courts to define the parameters of the broad dictates they lay down. And sometimes they even explicitly tell the courts that it is their job to do so.

Full post as published by Dispatches from the Culture Wars on June 02, 2009 (boomark / email).