Do judges make policy? Will a white man and a Hispanic woman who look at the same facts and apply the same law often come up with different conclusions?

Judge Sonia Sotomayor has said the answer to both questions is "Yes," and that's rankling conservatives. Critics say the remarks offer a window into her judicial philosophy. Supporters say she's only reflecting the reality of the judicial branch.

Both sides are right.

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THE COMMENT: "The court of appeals is where policy is made," Sotomayor said in during a 2005 Duke University panel discussion.

THE SPIN: "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written," said Wendy Long, counsel to the conservative Judicial Confirmation Network. "She thinks that judges should dictate policy."

THE TRUTH: Because most cases never get to the Supreme Court, appeals courts are often the final word on public policy questions. Can you snowmobile in national parks? Can the military force soldiers to get vaccinated for anthrax? Can terminally ill patients demand access to experimental drugs?

The legislative and executive branches put laws and regulations on the books, and the courts decide how it all works.

Is that the same as "making" policy? When an appeals court struck down the Bush administration's clean air rules, it threw out an entire regulation. It changed the rules governing power plants and sent Congress scrambling. The decision was based on a reading of the law, but it's hard to argue the effect was anything other than a court making policy.

The words, however, suggest a judicial philosophy that cause conservatives to cringe. Conservative judges avoid using verbs like "make" or "write" when describing their effect on the law.

Consider Chief Justice John Roberts during his confirmation hearing: "Judges are like umpires. Umpires don't make the rules; they apply them."

Even President Barack Obama, in introducing Sotomayor, said a "judge's job is to interpret, not make, law"

Bottom line: Sotomayor gave a fairly accurate thumbnail description of how the appellate system works, but those who hoped for a Roberts-like umpire have legitimate grounds to criticize her comments. Even Sotomayor seemed to know she had touched on a controversial topic.

"I know this is on tape, and I should never say that, because we don't make law," Sotomayor quickly added at Duke. "I'm not promoting it, and I'm not advocating it. I'm _ you know."

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THE COMMENT: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," Sotomayor said in a 2001 lecture at the University of California, Berkeley, School of Law.

THE SPIN: Sotomayor thinks "that one's sex, race and ethnicity ought to affect the decisions one renders from the bench," Long said.

THE TRUTH: Both Republican and Democratic presidents have sought justices from diverse backgrounds.

If such experience meant nothing, there would be no discussion of diversity on the Supreme Court. President Ronald Reagan would not have openly looked for "the most qualified woman that I could possibly find" when searching for a nominee. President George W. Bush would not have talked up Harriet Miers' religious faith and described her as a trailblazing, pioneer woman in the law.

The reality is that judges, even conservative judges, do not check their backgrounds at their chambers door. For example, consider the dissent issued by Judge Janice Rogers Brown, a Bush appointee who is black and was born to a sharecropper in segregated Alabama:

An inappropriate police stop in minority neighborhoods "offends the principle of equal justice under law," Brown wrote in the 2007 case over police searches. "For, as we all know, courts would not approve the search of four men in business attire, conversing peaceably in front of a Starbucks, if the only basis for the search was a 'lookout' broadcast specifying a white man, medium height and build, wearing a business suit."

Such searches, Brown said, "leave young black men feeling bruised and insulted."

That is apparently the kind of insight Obama meant when discussing the need for a justice with "experience being tested by obstacles and barriers, by hardship and misfortune."

The problem for Sotomayor is that she went beyond the experience-is-important line. She said the Latina experience leads to "better" decisions than the white experience. It's hard to imagine a judge getting nominated to the Supreme Court after saying white men made better decisions than black women, or Catholics better than Jews.