Myths and falsehoods surrounding the Sotomayor nomination http://mediamatters.org/items/200905270049 In covering the announcement by President Obama that he intends to nominate Judge Sonia Sotomayor to replace retiring Justice David Souter on the Supreme Court, the media have advanced numerous myths and falsehoods about Sotomayor. In some cases, the media assert the falsehoods themselves; in others, they report unchallenged the claims of others. In addition to evaluating these claims on their merits, the media should also consistently report that conservatives were reportedly very clear about their intentions to oppose Obama's nominee, no matter who it was. Their attacks must be assessed in the context of their reported plans to use the confirmation process to "help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats"; "build the conservative movement"; provide "a massive teaching moment for America"; "prepare the great debate with a view toward Senate elections in 2010 and the presidency"; and "hurt conservative Democrats." Media Matters for America has compiled a list of myths and falsehoods that have emerged or resurfaced since Sotomayor's nomination was first reported. MYTH: Sotomayor advocated legislating from the bench Media including The Wall Street Journal, USA Today, CNN, Fox News, and MSNBC have misrepresented Sotomayor's statement -- during a February 25, 2005, Duke University School of Law forum -- that the "court of appeals is where policy is made." These media outlets have advanced assertions that Sotomayor was advocating that judges make policy from the bench, or in the case of NBC's Matt Lauer and Chuck Todd, falsely characterized Sotomayor's comment themselves. But the context of her comments makes clear that she was simply explaining the difference between district courts and appeals courts after being asked about the differences between clerkships at the two levels, an explanation in line with federal appellate courts' "policy making" role described by the Oxford Companion to the Supreme Court of the United States (2005). From Sotomayor's remarks: SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time. According to NBC News justice correspondent Pete Williams, "[E]ven some conservatives and followers of strict constructionism have said that [Sotomayor] was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the, you know, above the other courts, do set policy; they do make precedent that governs the other courts." Indeed, legal experts have stated that Sotomayor's comment is not controversial, as The Huffington Post and PolitiFact.com have noted. In the words of Hofstra University law professor Eric Freedman, Sotomayor's remark was "the absolute judicial equivalent of saying the sun rises each morning" and "thoroughly uncontroversial to anyone other than a determined demagogue." MYTH: Sotomayor said, "Latina judges are obviously better than white male judges" Media figures have misrepresented a remark that Sotomayor made in a speech published in 2002, claiming that she suggested, in the words of Fox News' Megyn Kelly, "that Latina judges are obviously better than white male judges." Further advancing the falsehood, numerous media figures have asserted that Sotomayor made a "racist statement." In fact, when Sotomayor asserted, "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," she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases. Indeed, as Media Matters has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience. MYTH: Sotomayor's Supreme Court reversal rate is "high" In a May 27 article headlined "Sotomayor reversed 60% by high court," The Washington Times uncritically quoted Conservative Women for America president Wendy Wright saying that Sotomayor's reversals -- which the Times reported as three of five cases, or 60 percent -- were "high." Similarly, on May 26, Congressional Quarterly Today uncritically quoted (subscription required) Wendy Long, counsel to the Judicial Confirmation Network, claiming that Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." In fact, contrary to the claim that a reversal rate of 60 percent is "high," data compiled by SCOTUSblog since 2004 show that the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year. MYTH: Liberal judges like Sotomayor are "activist[s]" CNN's Gloria Borger and Bill Schneider have uncritically repeated Republican claims that Sotomayor is -- in Schneider's words -- a "liberal activist," and in doing so have also advanced the baseless conservative claim that judicial activism is solely a "liberal" practice. But at least two studies -- looking at two different sets of criteria -- have found that the most "conservative" Supreme Court justices have been among the biggest judicial activists. A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder indicated that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Indeed, Gewirtz and Golder found that Thomas "was the most inclined" to do so, "voting to invalidate 65.63 percent of those laws." Additionally, a recently published study by Cass R. Sunstein (recently named by Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism -- the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism," while the "liberal" justices were most likely to exercise "judicial restraint." Moreover, according to Politico's Jeanne Cummings, "Sotomayor's history suggests the very sort of judicial restraint that conservatives clamor for in a nominee." She added: Whatever her personal ideology, she ruled against an abortion-rights group challenging [President] Bush's policy of banning overseas groups that take federal funds from conducting abortions. In another case, she ruled in favor of abortion protesters. "She applied the law even-handedly and come out with the right decision," said Bruce Hausknecht, a judicial analyst for Focus on the Family Action, a large and influential voice on conservative social issues. Sotomayor's rulings on religious liberty issues also have pleased the conservative community. "It would have been a lot easier to communicate to the base why Judge Wood would not have made a good nominee," said Hausknecht. "With Sotomayor, we have to take a wait-and-see attitude." MYTH: Sotomayor was "[s]oft on New Jersey [c]orruption" In a May 26 post to his National Review Online "the campaign spot" blog, Jim Geraghty misleadingly suggested that as a U.S. district judge, Sotomayor was "[s]oft on New Jersey [c]orruption" due to the sentencing and financial penalty she issued in 1995 to Joseph C. Salema in a municipal bond kickback scheme. Geraghty cited the book The Soprano State: New Jersey's Culture of Corruption, by Bob Ingle and Sandy McClure, who wrote that "Salema could have spent up to 10 years behind bars" and that Sotomayor "instead sentenced him to six months in a halfway house and six months of home detention, fined him $10,000 and gave him 1400 hours of community service." Geraghty commented: "A $10,000 fine to someone who pleads guilty to a federal charge of sharing in more than $200,000 in kickbacks. Boy, that will teach him!" But in declaring Sotomayor "[s]oft," Geraghty ignored the fact that prosecutors reportedly sought a prison term of only one year and that Salema reportedly paid "a full restitution of $342,000" in a settlement with the Securities and Exchange Commission (SEC). MYTH: New Haven firefighters case shows Sotomayor is an "activist" The media have advanced conservatives' claim that Sotomayor's position in the New Haven firefighters case, Ricci v. DeStefano, shows that she is an "activist" judge. For example, a May 26 Congressional Quarterly Today article quoted Long as saying that Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court" and reported that Long "pointed to Sotomayor's participation in a 2nd Circuit discrimination case, Ricci v. DeStefano, in which a group of white New Haven, Conn., firefighters alleged they were unfairly denied promotions." In fact, Sotomayor agreed with four of her 2nd U.S. Circuit Court of Appeals colleagues that precedent compelled the decision in the case. Moreover, contrary to Long's suggestion that Sotomayor's decision shows that she is "far more of a liberal activist than even the current liberal activist Supreme Court," Souter -- whom Sotomayor would replace -- reflected an understanding of the situation faced by the city of New Haven, asking counsel for the firefighters: "Why isn't the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again? ... [I]sn't that the only way to avoid the damned if you do, damned if you don't situation?" MYTH: Sotomayor lacks the intellect to be an effective justice Several media figures have repeated the charge that Sotomayor lacks the intellect to be an effective Supreme Court justice, often quoting only anonymous sources or no sources at all. For instance, CNN's John King said while reporting on Obama's nomination announcement, "[S]ome ... are voicing surprise at this because they view her as a highly competent and a highly qualified judge, but they do not believe that she was the most, shall we say, of the intellectual firebrands that the president had on his list, those who could go up against a [Antonin] Scalia, or an [Samuel] Alito on the court in the arguments." The Washington Post's Dana Milbank similarly stated: "As a legal mind, Sotomayor is described in portraits as competent, but no Louis Brandeis." However, Media Matters has identified law scholars and legal professionals who worked with Sotomayor who have described her as "highly intelligent" and even "brilliant." As Tom Goldstein noted on SCOTUSblog, "Opponents' first claim -- likely stated obliquely and only on background -- will be that Judge Sotomayor is not smart enough for the job" because "[t]he public expects Supreme Court Justices to be brilliant." Goldstein added: "The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn't the match of the other Justices." Goldstein is a partner at Akin Gump Straus Hauer & Feldmann LLP and "co-head" of the firm's "litigation and Supreme Court practices" who "teaches Supreme Court Litigation at both Stanford and Harvard Law Schools." MYTH: Sotomayor is "domineering" and "a bit of a bully" Echoing a May 4 New Republic article by legal affairs editor Jeffrey Rosen, Fox News host Bill Hemmer and Supreme Court reporter Shannon Bream relied on anonymous sources that reportedly characterized Sotomayor as "domineering," sometimes "bogged down in marginal details," and "a bit of a bully." A CNN.com article similarly referenced "perceived ... concerns about her temperament." However, several of Rosen's sources were unnamed "former law clerks for other judges on the Second Circuit." Beyond allowing sources who are not identified to throw darts at Sotomayor, such citations of law clerks is problematic for a different reason, according to American University law professor Darren Hutchinson, who wrote, "[T]he use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic," because "[m]ost clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge." MYTH: "Empathy" is code for "liberal activist" Media figures and outlets have focused on the purported controversy over Obama's May 1 statement that he would seek a replacement for Souter who demonstrates the quality of "empathy" and conservatives' criticism that Sotomayor, in the words of Long, "applies her feelings ... when deciding cases." Several media figures and outlets, including Fox News' Special Report and The Washington Post, have falsely suggested that Obama said that he will seek a Supreme Court nominee who demonstrates empathy rather than a commitment to follow the law. In fact, in the statement in question, Obama said that his nominee will demonstrate both. Other media have stated or advanced the claim that, in the words of a May 4 National Review editorial, "[e]mpathy is simply a codeword for an inclination toward liberal activism." But these media figures and outlets have ignored conservatives' history of stressing the importance of judges' possessing empathy or compassion. Indeed, during his Supreme Court confirmation hearings, responding to Sen. Herb Kohl's (D-WI) question, "I'd like to ask you why you want this job?" Thomas stated in part: "I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does." Moreover, then-President George H.W. Bush cited Thomas' "great empathy" in his remarks announcing that he was nominating Thomas to serve on the Supreme Court. Sen. Kit Bond (R-MO) similarly stated: "Though his skills as a lawyer and a judge are obvious, they are not, in my view, the only reason that this committee should vote to approve Judge Thomas's nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans." In his review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins), former Bush administration lawyer John Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience. Additionally, several Republican then-senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), cited compassion as a qualification for judicial confirmation. For instance, during the confirmation hearings for Justice Ruth Bader Ginsburg, Thurmond stated that "compassion" was one of the "special qualifications I believe an individual should possess to serve on the Supreme Court," adding that "[w]hile a nominee must be firm in his or her decisions, they should show mercy when appropriate." Similarly, during the confirmation hearings for Justice Stephen Breyer, Thurmond said "compassion" was among "the special criteria which I believe an individual must possess to serve on the Supreme Court." You can help support our work; become a volunteer media monitor, or donate to Media Matters for America.