If I were on the Senate Judiciary Committee here's what I imagine I would ask:
Judge Sotomayor, I have one question. If you answer it correctly I will vote for your confirmation and if you answer it incorrectly I will vote against confirming you. Here's my question: True or false? All judges in the normal conduct of their authority do make law.
The correct answer, of course, is "True." But from the statements of the Republicans on the committee and from Judge Sotomayor one would think the answer is "False" and that Judges do not make law. Contrary to what Judge Sotomayor and the Republicans would have you believe, it is basic black letter law that Courts and judges do make law.
Black's Law Dictionary tells us, "Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law." This means that congress makes laws by enacting statutes, and the judiciary makes laws by issuing decisions and rulings. In their processes of making laws, all lawmakers do interpret existing law. But it is a false dichotomy to say that judges interpret law and they do not make law and that only Congress makes law. The very purpose for which judges interpret law is so that they can make law. The interpretation of law is what judges do as part of their decision-making process that results in the law that they make. Sometimes the law that they make is only the law of the individual case. But sometimes, in an area where there is not specific statute covering the factual circumstances, the judges do make laws that all citizens must obey until Congress later passes a specific statutory law to deal with the issue.
Actually both Congress and the judiciary interpret the law as part of their law-making function. Congress interprets the Constitution and prior law when making new statutory law. For example, Congress must ask, does the Constitution allow us to make this law, and does this law conflict with other laws? And the judicial branch interprets the law when it is making new case law.
As Black's Law Dictionary informs us, "The 'law' of a state is to be found in its statutory and constitutional enactments, as interpreted by its courts, and in the absence of statute law, in rulings of its courts. The word law generally contemplates both statutory and case law."
So when Republican Senators like Graham, Sessions, and Kyl would have the American people believe that judges should not be making law, they are misleading the people. Congress makes statutory law and judges make case law. Republicans are in fact trying to usurp and overreach their law making authority by convincing the American people that there is something wrong when judges make the law. Nothing could be more inaccurate.
The problem is that ever since Marbury v. Madison, Congress has been jealous of the Court's authority to overrule Congress on constitutional grounds. Republicans are trying to undermine our system of checks and balances and the Court's authority to unmake the laws that Congress makes.
Asking which came first, statutory law or case law, is a little like asking about the proverbial chicken and egg. Statutes are created but they don't cover all areas of life and when a controversy comes to the court and there is no specific statute covering the conflict, the court makes a case law that settles the matter. That case law, depending on the level of the court, must be followed. The case law of a trial court must be followed by the parties in the case. The case law of the appellate court must be followed by all people within the jurisdiction of the appellate court, and the case law of the Supreme Court must be followed by all people in the nation.
As part of the normal checks and balances of our legal system, if the legislative branch doesn't like the case law that has been established in those situations where statutes are lacking or vague, then Congress may enact a new statute that overrules the case law with statutory law. But short of amending the Constitution, the courts have the last say when it comes to the Constitution law. So, when Congress enacts a statute based on a wrong interpretation of the Constitution, then the courts can overturn the law as unconstitutional and Congress can do nothing to change that case law except to pass an amendment to the Constitution and seek ratification by the states.
Some people may argue that when the Supreme Court issues a decision on Constitutional law that it is just interpreting the Constitution not making law. But in that case it is a distinction without a difference. For example, when the Supreme Court at one time said that "separate but equal" was constitutional, it was making that law based on its then interpretation of the Constitution. And when the Supreme Court threw out "separate but equal" is was making new law based on its then current interpretation of the Constitution. So, while the actual words of the Constitution remained exactly the same, the different interpretations actually made different judicial laws that each had to be followed during the time of their judicial enactment. Thus, a decision of the Supreme Court is seldom, if ever, just an interpretation of law but is an actual making of the case law of the land.
At her confirmation hearing, Judge Sotomayor misinformed the public by equating generic "law" with the statutes that Congress makes. The Judicial branch makes law through the decisions of the courts. Every decision of the court is lawmaking.
Many observers beside myself have noted that confirmation hearings have become a farce because the nominees avoid questions by hiding behind the two shields of "I won't answer hypothetical questions" and "I won't discuss issues that may come before the court." Nominated judges in these confirmation hearings just say whatever boring and vanilla thing will get them approved with as little controversy as possible. Phrases such as "judges interpret the law, they don't make the law" must be repeated because the Congresspeople are so jealous and childish about their role as the makers of statutory law that they can't allow it even to be said that of course judges make laws, they make the case laws.
We know that Judge Sotomayor, like Roberts and Alito before her, in order to be confirmed said as little as possible about her real feelings about the law, and like Roberts and Alito, misrepresented, obfuscated, and essentially lied to Congress about her views of the law. Defenders of the nominees say the nominee must play this role in the farce in order to be confirmed. Still, it galls me that the history and practice of jurisprudence is being so twisted and perverted by the way the word "law" is being narrowed to be a synonym of "legislative statute" and leaves out judicial decision-making as making laws.