Video: Andrew Cohen Says "Judicial Activism" Is A Falsehood

Topics: Sonia Sotomayor

In the below interview with CBSNews.com, CBS News Legal Analyst Andrew Cohen argues that the idea of "judicial activism" and judges making policy from the bench "is a falsehood."

"Any time a judge rules, it's an act," says Cohen. "The other myth is that judges don't make policy choices…they do."

President Obama has been criticized for using the word "empathy" to describe what qualities he looks for in a nominee. Skeptics argued the word choice was a signal that his pick would be an "activist."

Cohen goes on to suggest that "the idea that no judge anywhere ever makes policy is just a myth, and hopefully is a myth that will be busted up as we go forward with this process."

Asked whether he envisions any "surprises" in Sotomayor's confirmation process, Cohen said, "I don't think there are many surprises left when you have someone who has been on the federal bench since 1992."

"All of the skeletons that were there to be had, have been had," he said.

Cohen believes the ruling which will draw the most attention during Sotomayor's confirmation hearings will be the New Haven firefighters' affirmative action case currently being argued at the Supreme Court. He believes that her decision to support the city will be overturned on appeal – and that opponents will then pounce.