Updated myths and falsehoods surrounding the Sotomayor nomination

››› ››› JEREMY HOLDEN

The media have advanced numerous myths and falsehoods about Sonia Sotomayor. Beyond assessing the merits of attacks premised on these myths and falsehoods, the media should consistently note 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 President Obama's nomination of 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.

Beyond the merits, the attacks by conservatives should 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: The Supreme Court decided Ricci "9-0" against Sotomayor

Following the Supreme Court's decision in Ricci v. DeStefano -- which reversed by a 5-4 margin a decision by the 2nd U.S. Circuit Court of Appeals -- several conservative media figures have claimed that the Supreme Court decided "against" Sotomayor "9-0." In fact, while Justice Ruth Bader Ginsburg wrote in her dissent that "[o]rdinarily, a remand for fresh consideration would be in order" and that "I would not oppose a remand for further proceedings fair to both sides," she concluded, "[W]hat this case does not present is race-based discrimination in violation of Title VII." That conclusion is consistent with the 2nd U.S. Circuit Court of Appeals decision Sotomayor joined.

In her dissent, joined by Justices David Souter, John Paul Stevens, and Stephen Breyer, Ginsburg also wrote:

Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven's failure to certify the exam results violated Title VII's disparate treatment provision.

MYTH: Supreme Court reversal of Ricci an "extraordinary rebuke" for Sotomayor

In a May 27 editorial, The Washington Times stated that if the Supreme Court were to reverse the 2nd Circuit decision in Ricci -- which the High Court subsequently did by a 5-4 margin -- "It would be an extraordinary rebuke were a current nominee to be overruled on such a controversial case by the very justices she is slated to join." But it is a myth that the Ricci reversal represents an "extraordinary rebuke" for Sotomayor. Indeed, the Supreme Court reversed at least four decisions by the 3rd U.S. Circuit Court in which Samuel Alito either wrote or joined the majority opinion, and Alito also received a "rebuke" by Justice Sandra Day O'Connor, whom he replaced, regarding his dissent in the abortion-rights case, Planned Parenthood v. Casey.

Furthermore, as an appeals court judge, Chief Justice John Roberts was a member of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, which, in its July 2005 unanimous ruling in Hamdan v. Rumsfeld, allowed a military commission to try Salim Ahmed Hamdan, a Guantánamo Bay detainee. Roberts was confirmed as chief justice several months later, in September 2005. Then, in 2006, the Supreme Court reversed the circuit court's decision on a 5-3 ruling.

MYTH: Sotomayor's Supreme Court reversal rate is "high"

In a May 27 article headlined, "Sotomayor reversed 60% by high court," The Washington Times reported that "[t]hree of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed" and then uncritically quoted Conservative Women for America president Wendy Wright saying that Sotomayor's reversal rate was "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 myth that it is unusual for the Supreme Court to reverse federal appellate court decisions, data compiled by SCOTUSblog since 2004 show that the Supreme Court has reversed more than 67 percent of the federal appeals court cases it considered each year, except 2007, when it reversed federal appeals court cases 61 percent of the time.

MYTH: The 2nd Circuit's decision in Maloney v. Cuomo represented "activism"

On May 31, Fox News host Chris Wallace and Supreme Court correspondent Shannon Bream each misrepresented the Supreme Court's decision in District of Columbia v. Heller in order to suggest that Sotomayor may have -- in Wallace's words -- been "making policy from the bench" in the 2nd Circuit case Maloney v. Cuomo. Wallace and Bream suggested that Sotomayor's position in Maloney was, as Bream put it, "in contrast to the Heller decision we got from the Supreme Court last year saying the Second Amendment gives individual gun rights." In fact, the 2nd Circuit -- in a per curiam opinion joined by Sotomayor and two of her colleagues -- specifically addressed Heller and said it didn't apply to Maloney, which involved the question of whether the Second Amendment applies to state governments. Indeed, as Lyle Denniston noted on SCOTUSblog, in Heller, the Supreme Court "did not settle whether the [Second] Amendment operates against any level of government other than the federal government and a federal entity, the District of Columbia."

In a June 2 decision, a three-judge panel of the 7th U.S. Circuit Court of Appeals similarly held that Heller did not apply to states. A June 16 New York Times article reported, "On June 2, a three-judge panel of the court, led by Chief Judge Frank H. Easterbrook, a well-known conservative, ruled that there was no basis for the court to apply the Second Amendment to the states."

From the 2nd Circuit's per curiam opinion:

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008).

It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006).

Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent 'has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.

MYTH: Sotomayor's position in property rights case was an "extension" of Supreme Court decision in Kelo

In a June 15 article citing criticism of a decision by Sotomayor and two other 2nd Circuit judges to throw out a lawsuit alleging a violation of due process and the Fifth Amendment's Takings Clause, New York Times reporter Adam Liptak left out key facts, resulting in a significantly one-sided article bolstering the contention by critics of the decision that, in the words of a law professor cited in the article, it was "the worst federal court takings decision" since the Supreme Court's ruling in Kelo v. City of New London.

In the case of Didden v. Village of Port Chester, the 2nd Circuit upheld the lower court's finding for the defendant, holding that the suit was filed too late and writing that even if the statute of limitations did not bar the suit, the Supreme Court's decision in Kelo would have prevented the court from finding for the plaintiff. Although the court made clear it was deciding the case based on the statute of limitations, Liptak characterized the decision as "applying and extending Kelo" -- without providing any basis for asserting that the decision represented an "extension" of Kelo.

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. Additionally, conservatives, including Justices Clarence Thomas and Samuel Alito, have acknowledged the significant impact their background and personal experiences have had on their judicial thinking.

MYTH: Sotomayor advocated "judicial activism" in 2005 statement that "court of appeals is where policy is made"

In their reporting of Sotomayor's 2005 statement that the "court of appeals is where policy is made," several media figures and outlets have advanced the falsehood that her statement represented, in the words of Fox News' Sean Hannity, "the definition of judicial activism." In fact, 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). Indeed, numerous legal experts have stated that Sotomayor's comment was, in the words of Hofstra University law professor Eric Freedman, "the absolute judicial equivalent of saying the sun rises each morning" and "thoroughly uncontroversial to anyone other than a determined demagogue."

From Sotomayor's remarks at a February 25, 2005, Duke University School of Law forum, made in response to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship:

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.

MYTH: Sotomayor advocated "submit[ing] ourselves" to foreign law or "merging our law" with foreign law

A June 26 New York Times article uncritically reported a statement made by Sen. Jeff Sessions (R-AL) distorting Sotomayor's April speech on the relevance of foreign law to U.S. judges. The Times reported that Sessions, citing "a speech that Judge Sotomayor gave to the Puerto Rico chapter of the American Civil Liberties Union in April," stated in a Senate floor statement: "To submit ourselves to their political policies while pretending we are merging our law with theirs is just plain foolishness." The article also quoted Sessions as saying of Sotomayor, "The question is, Who does the judge serve? The people of the United States or the people of the world or some individual country with whom they agree?" However, Sotomayor did not advocate "submit[ing] ourselves" to foreign law or "merging our law" with foreign law in the speech Sessions cited. While Sotomayor advocated in favor of U.S. judges considering ideas from foreign law in the speech, she also specifically said: "American analytical principles do not permit us to use that law to decide our cases."

Moreover, Sotomayor's view of the relevance of foreign law is not one embraced solely by liberals. Justice Anthony Kennedy, for example has cited foreign law in opinions he has written. In Roper v. Simmons, for example, Kennedy wrote:

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.

[...]

It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

In Lawrence v. Texas, Kennedy also cited foreign law in his majority opinion:

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P.G. & J.H. v. United Kingdom, App. No. 00044787/98, ¶56 (Eur. Ct. H.R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H.R. (1993); Norris v. Ireland, 142 Eur. Ct. H.R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

MYTH: Sotomayor "assert[ed] that there are 'inherent physiological' differences between the races"

In a July 8 editorial, The Washington Times claimed that Sotomayor "assert[ed]" in three speeches "that there are 'inherent physiological' differences between the races" and suggested her comments should disqualify her from serving on the Court. In fact, as the quote the Times provided clearly demonstrates, Sotomayor made no such claim. Rather, in a 2001 speech at the University of California-Berkeley School of Law, a 2002 speech at Princeton University, and a 2003 speech at Seton Hall University, Sotomayor repeated variations of the following statement: "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [federal district] Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging."

In a July 13 editorial, The Washington Times went even further, misquoting Sotomayor's remarks by falsely claiming she referred to "inherent physiological and cultural differences" [emphasis added] in the speeches in question.

MYTH: Sotomayor is a judicial activist

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 a "liberal" practice. ABC correspondent Jan Crawford Greenburg similarly advanced the myth that conservative judges are proponents of judicial restraint while liberal judges are activists. 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 most activist. Moreover, the recent case of Ricci, which conservatives cite as a purported example of Sotomayor advancing a political agenda in her decisions, actually offers an example of activism by the five conservative justice majority on the Supreme Court, who voted to reverse a decision by the city of New Haven to disregard a fire department test because of racial disparities in the results. Sotomayor, by contrast, voted in the majority on the 2nd Circuit to uphold the city's decision.

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 study published by Cass R. Sunstein (who has been nominated 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."

Further, a June 19 Congressional Research Service analysis of Sotomayor's selected opinions stated that the "characteristics" applying to Sotomayor "appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping its judicial role." And according to the Politico's Jeanne Cummings, "Sotomayor's history suggests the very sort of judicial restraint that conservatives clamor for in a nominee."

MYTH: Obama "decreed" that Sotomayor debate feature "biography" over "qualifications"

In a May 29 column, Wall Street Journal editorial board member Kimberley Strassel wrote that "President Barack Obama has laid down his ground rules for the debate over Supreme Court nominee Sonia Sotomayor" and then falsely claimed, "Ground Rule No. 1, as decreed by the president, is that this is to be a discussion primarily about Judge Sotomayor's biography, not her qualifications." In fact, contrary to Strassel's claim that Obama "decreed" that "this is to be a discussion primarily about Judge Sotomayor's biography, not her qualifications," in his speech announcing her nomination, Obama began his remarks about Sotomayor by speaking extensively about her qualifications.

In his May 26 nomination announcement, Obama stated, "Over a distinguished career that spans three decades, Judge Sotomayor has worked at almost every level of our judicial system, providing her with a depth of experience and a breadth of perspective that will be invaluable as a Supreme Court justice." He continued:

It's a measure of her qualities and her qualifications that Judge Sotomayor was nominated to the U.S. District Court by a Republican President, George H.W. Bush, and promoted to the Federal Court of Appeals by a Democrat, Bill Clinton. Walking in the door she would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed.

Judge Sotomayor is a distinguished graduate of two of America's leading universities. She's been a big-city prosecutor and a corporate litigator. She spent six years as a trial judge on the U.S. District Court, and would replace Justice Souter as the only justice with experience as a trial judge, a perspective that would enrich the judgments of the Court.

For the past 11 years she has been a judge on the Court of Appeals for the Second Circuit of New York, one of the most demanding circuits in the country. There she has handed down decisions on a range of constitutional and legal questions that are notable for their careful reasoning, earning the respect of colleagues on the bench, the admiration of many lawyers who argue cases in her court, and the adoration of her clerks who look to her as a mentor.

During her tenure on the District Court, she presided over roughly 450 cases. One case in particular involved a matter of enormous concern to many Americans, including me: the baseball strike of 1994-1995. (Laughter.) In a decision that reportedly took her just 15 minutes to announce, a swiftness much appreciated by baseball fans everywhere -- (laughter) -- she issued an injunction that helped end the strike. Some say that Judge Sotomayor saved baseball. (Applause.)

Judge Sotomayor came to the District Court from a law firm where she was a partner focused on complex commercial litigation, gaining insight into the workings of a global economy. Before that she was a prosecutor in the Manhattan DA's office, serving under the legendary Robert Morgenthau, an early mentor of Sonia's who still sings her praises today. There, Sonia learned what crime can do to a family and a community, and what it takes to fight it. It's a career that has given her not only a sweeping overview of the American judicial system, but a practical understanding of how the law works in the everyday lives of the American people.

MYTH: Sotomayor said her ethnicity was the only reason she was admitted to Princeton and Yale

MSNBC and Fox News aired portions of a New York Times video package that cropped remarks Sotomayor made regarding affirmative action during a panel discussion with female judges in the early 1990s. The cropped video featured the following remarks by Sotomayor, but omitted the portion in italics: "I am a product of affirmative action. I am the perfect affirmative action baby. I am a Puerto Rican, born and raised in the South Bronx, and from what is traditionally described as a socio-economically poor background. My test scores were not comparable to that of my colleagues at Princeton or Yale -- not so far off the mark that I wasn't able to succeed at those institutions." The cropping of Sotomayor's comments in this way allows conservatives, such as Sean Hannity, to distort Sotomayor's remarks by suggesting that Sotomayor said her ethnicity was the only reason she was admitted to Princeton and Yale.

MYTH: Democrats rushed Sotomayor confirmation schedule

Fox News' Jon Scott did not challenge Sen. Lindsey Graham's (R-SC) claim that scheduling confirmation hearings for Sotomayor to begin on July 13 "would push us ahead of a confirmation schedule that we gave Chief Justice Roberts." In fact, Roberts' hearings were also originally set to begin 48 days after he was nominated -- the same timetable as Sotomayor's hearings -- before being delayed for a week because of Hurricane Katrina and the death of then-Chief Justice William Rehnquist. Advancing the myth, media have reported without challenge Sessions' call in early June to delay Sotomayor's confirmation hearing until the fall and request for more information related to Sotomayor while ignoring the fact that Sessions urged fast action on Alito's nomination, reportedly saying, "You don't have to read everything he's written."

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 The Washington Post and Fox News' Special Report, 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 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."

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