Marco Rubio's modus operandi during his long-shot Senate bid seems to be to turn to the hard right any chance he gets. So, it wasn't much of a surprise when he was one of the first wonks in Florida to get up on a shout box and paint President Obama's nomination of Sonia Sotomayor with a bit of wary, and released an email statement:
"I look forward to hearing more about Judge Sotomayor and her views about the proper role of the courts and judicial activism. The role the Supreme Court is to interpret the Constitution, not to make law. Given this, I am deeply concerned about Judge Sotomajor's past comment that the courts are 'where policy is made' and look forward to hearing her explanation and defense of that view."
Of course, if Rubio wanted to know what she meant by "where policy is mad," he'd only have to listen to the words directly proceeding and preceding it. Third grade teachers call this "reading in context."
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The remark came during a conference at Duke University Law School in 2005, and Sotomayor said it with a chuckle and a grain of salt.
"All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made, And I know this is on tape and I should never say that because we don't make law. I know. Okay, I know. I'm not promoting it. I'm not advocating it. I know."
So, Rubio is worried about the spooky idea of Sotomayor's potential "judicial activism," when a few sentences later she says she's not promoting or advocating it, but merely commenting on a reality. Yes, courts do play a part in promoting policy. That's partially what they're their for, to interrupt laws. Legislation, the responsibility of the legislative branch, doesn't always translate into clear cut policy.
Of course, Rubio's concerns are hardly his own. They've been making the rounds on the far right blogosphere since Sotomayor's name first was murmured as a potential nominee. So here's Rubio, eager to please the conservative base, acting as an echo chamber for the wingnuts, being amongst the first repeating back exactly what they've said.