6-03-09, 9:34 am

Media Advisory Misquoting Sotomayor Media let right-wing critics frame debate 6/2/09

Original source: Fairness and Accuracy in Reporting

At this point, the confirmation battle over Supreme Court nominee Sonia Sotomayor will hinge in part on whether the media want to fact-check her critics. So far, the press is largely failing.

Right-wing critics and politicians have been circulating comments Sotomayor made in 2001 at UC Berkeley. One quote has been replayed endlessly: '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.' (Sometimes the quote is replayed without the 'I would hope that' qualifier--e.g., NBC Nightly News, 5/31/09.)

Does Sotomayor believe that Latina judges are wiser than white judges? That's what her right-wing critics want the quote to mean. Washington Post columnist Charles Krauthammer characterized (5/28/09) her views as 'the superior wisdom she believes her Latina physiology, culture and background grant her over a white male judge.' And as CNN host Lou Dobbs put it (6/1/09), 'She said more often than not a Latino judge would reach a better decision than a white male.' That message has been carried mostly uncritically in much of the corporate media, thanks largely to a willingness to let right-wing pundits frame the discussion – often with little in the way of rebuttal from Sotomayor's defenders.

In the May 27 Washington Post, Howard Kurtz quoted that sentence along with a Fox News host calling Sotomayor a reverse racist. On May 28, the New York Times ran a story headlined 'Sotomayor's Opponents and Allies Prepare Strategies.' The piece recounted the controversial sentence, followed by the reaction of Newt Gingrich – he thinks she's a racist who should withdraw her name – and Republican Sen. Orrin Hatch, who doesn't think she should withdraw, but was nonetheless troubled by some of Sotomayor's views.

But anyone who reads Sotomayor's 2001 speech can see that the prevailing media discussion is totally misleading. Her point was that people's backgrounds affect how they see the world. This would seem to be a rather uncontroversial fact of life; justices Sandra Day O'Connor and Samuel Alito made similar statements about their own backgrounds to no great controversy.

In regards to cases involving race and gender discrimination, which was the topic under discussion, Sotomayor was arguing that the experience of facing discrimination may help in judging such cases – pointing out that despite the presumption that 'a wise old man and wise old woman will reach the same conclusion in deciding cases,' such wise old men as Oliver Wendell Holmes and Benjamin Cardozo 'voted on cases which upheld both sex and race discrimination in our society.' She added: 'Let us not forget that until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.'

It's not so hard to explain the context, but NBC's Meet the Press host David Gregory bungled his attempt to do so on May 31, excerpting primarily the lines from Sotomayor's address that buttress the claims of her right-wing critics, while leaving out the lines that make it clear that Sotomayor was advocating that judges strive to put aside their prejudices. His excerpt closed with this line: 'Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.' But Gregory left out her conclusion: I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate. But the framing of the debate over Sotomayor has been about more than this one speech. In some cases, the right's critique is driving the journalism--no matter what the facts say. On May 29, the New York Times featured a front-page examination of Sotomayor's work with the Puerto Rican Legal Defense and Education Fund: 'Sotomayor's involvement with the defense fund has so far received scant attention. But her critics, including some Republican senators who will vote on her nomination, have questioned whether she has let her ethnicity, life experiences and public advocacy creep into her decisions as a judge.' The article managed to not include anyone who took issue with that suggestion; it referenced only a single case that Sotomayor participated in, and concluded by letting right-wing activist Curt Levey suggest that it showed that 'she had a very specific agenda here' (FAIR Blog, 5/29/09).

The next day, the Times (5/30/09) featured a front-page piece headlined 'Sotomayor's Focus on Race Issues May Be Hurdle.' The premise of the article was that 'conservatives say her strong identification with such race-based approaches to the law is perhaps the strongest argument against her confirmation, contending that her views put her outside an evolving consensus that such race-conscious public policy is growing obsolete.' That theme was fleshed out with quotes from Republican Sen. John Cornyn and Gary Marx of the right-wing Judicial Confirmation Network--but no discussion of Sotomayor's actual record on these issues.

The Los Angeles Times, by contrast, did look at that record – and found experts who undermined the right-wing criticism of Sotomayor. As the paper reported (5/31/09), 'Little of that activist sentiment is revealed in the hundreds of cases Sotomayor has decided in her 11 years on the U.S. 2nd Circuit Court of Appeals.... Thomas Goldstein, a Washington lawyer with a Supreme Court specialty, said last week that he had reviewed 50 appeals involving race in which Sotomayor participated. In 45 of those cases, a three-judge panel rejected the discrimination claim--and Sotomayor never once dissented, he said.'

Unfortunately, the next day the L.A. Times (6/1/09) was back to a more conventional approach ('GOP Senators Bring Race Issue to Forefront of Sotomayor Nomination'), dwelling primarily on conservative criticism of Sotomayor, only adding in the final sentence of the piece: 'And early analyses of her judicial opinions – most notably one released Friday by the respected legal website SCOTUSblog – undercut the attacks on Sotomayor as a judge more interested in boosting minorities by showing that the vast majority of her rulings rejected claims of discrimination by minorities.' Journalism that led with such facts instead of burying them would make the confirmation battle look very different indeed.