WASHINGTON — Bronx federal appeals Judge Sonia Sotomayor, whose name appears on every short list of possible replacements for Supreme Court Justice David Souter, could face a tough battle if nominated — because of a video on which she claims judges make policy.
Rather than merely interpret laws written by Congress, she argued four years ago in a panel discussion at Duke University Law School, it is the US Court of Appeals that makes the rules of the land.
In addition to mangling the most basic lesson about the three branches of government, Sotomayor’s claim raises the hackles of conservatives who accuse liberal judges of trying to legislate from the bench.
“Court of Appeals is where policy is made,” Sotomayor says on the tape.
In the video, which has garnered some 8,000 views in the three days since it was posted on YouTube, Sotomayor quickly seems to realize the lightning-rod nature of her claim.
“I know — I know this is on tape and I should never say that, because we don’t make law,” she continued, to nervous laughter from the crowd. “I know, OK, I know.”
Then she sought to distance herself a little by adding, “I’m not promoting it and I’m not advocating it.”
But conservatives aren’t buying her afterthought backdown.
“In other words, Sotomayor believes that unelected judges like herself should be the nation’s policy-makers rather than sticking to interpretation of the law,” said Curt Levey, who runs the conservative Committee for Justice.
Her follow-up admission “demonstrates that she knows her approach to judging is illegitimate,” he said. “That makes the tape all the more damaging to her chances of being nominated to the Supreme Court.”
Republicans on Capitol Hill viewed the tape yesterday with relish, but declined to comment on the record in hopes of keeping their powder dry for what could be a bruising fight after President Obama makes his nomination.
“What disqualifies Judge Sotomayor is not her activist belief that jurists create law from the bench — that appears to be a prerequisite for this president,” said one top GOP aide.
“The disqualifier is that she’s dumb enough to voice it in a public forum while acknowledging the fact that it is being recorded.”
Meanwhile, the White House said yesterday that Obama doesn’t intend to announce his nominee this week, as had been speculated.
churt@nypost.com