Misquoting Sotomayor: Media Let Right-Wing Critics Frame Debate

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:

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 [5/29/09]--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.