Myths and falsehoods surrounding the Sotomayor nomination
SUMMARY: The media have advanced numerous myths and falsehoods about Sonia Sotomayor. 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 President Obama's nominee for political purposes, no matter who it was.
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."
