I have grown tired of Republicans convincing Democrats that judges do not make law. This argument has become so damn tiresome, because even as cynical as I am I believe most of those who are advancing this falsehood are smart enough to know they are misleading the public. The reality is that judges do, in fact, make laws. In law school we spend much of our time reading things called case books which educate us about something called case law. As you may have guessed, case law is law that has been created by judicial opinions. In many areas of the law (most notably contract law and torts) a lot of the law in the field has been created by judges. Many watching the Sotomayor hearing would be shocked to know that there are things called restatements of laws which are written largely by academics and carry a great deal of influence over judicial decisions. It is true that restatements are not binding, but it is just as true that they often play a significant role in the development of case law and that they are regularly referenced in judicial opinions.
So, as you watch the rest of the hearing please remember that judges do make laws, and that our legal system and our society would not function nearly as smoothly as they do if the judicial branch was not actively creating law.
Tags: Democrats, judges, judicial branch, judiciary, justice, law, opinion, politics, Republicans, Sonia Sotomayor
