POLITICS
07/01/2009 05:12 am ET Updated May 25, 2011

Feinstein Answers Republicans: "Judges Do Make Policy"

Republicans hit the airwaves -- and President Obama's first nominee for the Supreme Court -- hard this week, calling Judge Sonia Sotomayor racist and accusing her of using the courts to create policy. And on CBS's "Face the Nation," Sen. Dianne Feinstein (D-Calif.) hit back.

Sotomayor is an activist judge, Republicans argue, and doesn't want simply to interpret the law, but rather to make law from the bench. They cite a much-repeated statement she made at a forum at Duke University.

"Court of appeals is where policy is made," Sotomayor said.

Feinstein, breaking a Washington taboo, responded by pointing out the obvious: Regardless of what Republicans think about it, judges do, in fact, make policy, Feinstein said.

"There's a lot of comment about the fact, well, she makes policy. There's another comment she made on the fact that judges make policy," said Feinstein. "And the traditional rejoinder to that is judges do not make policy. In my experience, 16 years on the committee, that's not true. If there is no precedent, judges do make policy. If there is no precedent, an appellate court judge will, in effect, by their opinion, make policy."

Feinstein pointed to a case of a student who was strip searched on suspicion of having illicit possession of Ibuprofen in school, which was argued before the Supreme Court in April, as an example of the courts making policy.

"Now, there's no precedent," Feinstein said. "The Supreme Court will be making policy in that regard. I think that has to be clearly understood by people."