This is absolutely true, in the sense she intended: precedential decisions, by definition, make judicial policy. They provide the basic principles that guide future rulings. But both Sotomayor and her audience were acutely aware of how charged the word policy has become in matters concerning the judiciary—conservatives accuse liberal judges, not without truth, of trying to set national policy from the bench. This accusation has become a rallying cry for those who believe that the Supreme Court justices should adhere strictly to the actual language and original intent of the Constitution, instead of coloring the law with their own modish theories to produce such social experiments as school desegregation, Miranda warnings, abortions on demand, and so forth. The polite laughter that caught Richmond’s ear was recognition by the law students that the judge had inadvertently stepped in a verbal cow pie. She immediately recognized what she had done, expressed mock horror at being caught doing so on tape, and then pronounced a jocular and exaggerated mea culpa, like a scoring runner in a baseball game tiptoeing back out onto the diamond to touch a base that he might have missed. Sotomayor went on to explain in very precise terms how and why decisions at the appellate level have broader intellectual implications than those at the lower level. It is where, she said, “the law is percolating.”

Seen in their proper context, these comments would probably not strike anyone as noteworthy. If anything, they showed how sensitive Sotomayor and everyone else in the room had become to fears of an “activist court.”

A look at the full “Latina woman” speech at Berkeley reveals another crucial misinterpretation.

To his credit, Richmond posted as much of the speech as copyright law allows, attempting to present the most important sentence in context. But he still missed the point. Sotomayor’s argument was not that she sought to use her position to further minority interests, or that her gender and background made her superior to a white male. Her central argument was that the sexual, racial, and ethnic makeup of the legal profession has in fact historically informed the application of law, despite the efforts of individual lawyers and judges to rise above their personal stories—as Sotomayor noted she labors to do. Her comment about a “wise Latina woman” making a better judgment than a “white male who hasn’t lived that life” referred specifically to cases involving racial and sexual discrimination. “Whether born from experience or inherent physiological or cultural differences… our gender and national origins may and will make a difference in our judging,” she said. This is not a remarkable insight, nor is it even arguable. Consider, say, how an African-American Supreme Court justice might have viewed the Dred Scott case, or how a female judge—Sotomayor cited this in the speech—might have looked upon the argument, advanced to oppose women’s suffrage, that females are “not capable of reasoning or thinking logically.” The presence of blacks and women in the room inherently changes judicial deliberation. She said that although white male judges have been admirably able on occasion to rise above cultural prejudices, the progress of racial minorities and women in the legal profession has directly coincided with greater judicial recognition of their rights. Once again, her point was not that this progress was the result of deliberate judicial activism, but that it was a natural consequence of fuller minority and female participation.