Media outlets have allowed Judicial Confirmation Network's Wendy Long to criticize Sonia Sotomayor's reversal rate without noting that JCN ran an ad falsely claiming that Sotomayor has a “100% reversal rate” -- calling JCN's credibility into question.
During a May 26 appearance on CNN's Anderson Cooper 360, Wendy Long, counsel for the conservative group Judicial Confirmation Network (JCN) falsely claimed that Supreme Court nominee Judge Sonia Sotomayor has “had plenty of cases ... overturned unanimously” by the Supreme Court. Similarly, as Media Matters for America has noted, a May 26 Congressional Quarterly Today article uncritically quoted Long as 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.” But in neither case did the outlet advancing Long's criticism of Sotomayor's reversal rate note a factor that calls JCN's credibility into question: JCN previously ran a Web ad on its website ObamasFrontRunners.com -- since taken offline, with the ad removed from YouTube -- which made the false claim that Sotomayor has a “100% reversal rate as a court of appeals judge.”
Contrary to Long's claim on Anderson Cooper 360 that Sotomayor has “had plenty of cases ... overturned unanimously” by the Supreme Court, as an appellate court judge, Sotomayor wrote the majority opinion in five cases that, as of today, have been decided by the Supreme Court; the Supreme Court reversed three of those five decisions, and in two of those three reversals, at least three of the dissenting justices agreed with her holding. Guest host John King did not contest Long's claim, despite stating earlier in the program that the number of times Sotomayor's decisions had been overturned was “not unusual.” Indeed, contrary to Long's assertion -- uncontested by CQ Today -- that Sotomayor's reversal rate is “extremely high,” this 60 percent reversal rate is in fact lower than the overall Supreme Court reversal rate for all lower court decisions from the 2004 term through the present -- both overall and for each individual Supreme Court term.
JCN has reportedly admitted that the claim made in its ad was false. In a May 27 column about the JCN video, Bloomberg's Ann Woolner reported that in a telephone interview with her, JCN executive director Gary Marx “conceded he had found some” Sotomayor opinions “that were affirmed” :
That partly fungible Sotomayor video opens by claiming in stark white on black, “100% REVERSED.” The 100 grows to take up most of the screen.
A reversal rate that high would be an astounding record, especially for a judge who has been ruling for 17 years. Surely no president would nominate a judge like that.
He hasn't. The Judicial Confirmation Network's executive director, Gary Marx, said in a telephone interview that the group had looked at only four of her cases that the Supreme Court decided.
And, oh yeah: Not all of them were reversed. At least one was upheld, it's just that the court affirmed on grounds different from Sotomayor's.
So, why would you say “100% REVERSED” when you only considered four cases, not all of which were reversed?
“That's what we had to look at initially,” explained Marx. “We have found more reversals since then.”
Pushed on the point, he conceded he had found some that were affirmed, too, though not many.
From the May 26 edition of CNN's Anderson Cooper 360:
KING: More now on the nominee's record. She's had some big cases overturned by the Supreme Court. Four of her six -- four of six, excuse me -- during her time on the 2nd Circuit. That's not unusual. According to the Web site SCOTUSBlog, about 77 percent of the cases before the high court have been reversed during the current term.
LONG: Well, do you agree that she made a mistake in the Ricci case?
CHARLES OGLETREE (Harvard Law School professor): I do not agree she made a mistake in the Ricci case. And neither has the Supreme Court agreed with that. And if they do, it will be by one vote, so don't tell me that she's an egregious liberal progressive.
LONG: She's had plenty of cases, Charles -- she's had --
OGLETREE: Well, what are they? Where are they?
LONG: -- plenty of cases overturned unanimously.
OGLETREE: There are hundreds of cases --
KING: All right. Let me call a timeout here. Let me call a timeout here.
LONG: Where she invented a First Amendment right.
OGLETREE: There are hundreds of cases. Let me let you look at them.
KING: We're going to run out of time here, so let me call a timeout here. Jeff Toobin, having just heard this, a very spirited debate for and against, the president clearly knew this was coming. He and his team did this homework. So knowing that you were going to have this polarization right out of the box, why her?
TOOBIN: Because she is, by any standard, enormously qualified: 17 years as a federal judge; this long, distinguished history. And on the political issues -- on issues like affirmative action, on abortion, she's with the president. And presidents pick Supreme Court justices --
TOOBIN: -- to extend their legacies long after they're gone.
President Bush did it brilliantly with John Roberts and Samuel Alito. And I think Sonia Sotomayor will reflect the politics of Barack Obama well into the next decade.
KING: Jeff Toobin, Wendy -- Wendy, and Professor Ogletree, I wish we had more time, but we do have a couple of months, I believe -- at least a couple months. And we'll come back with this.
TOOBIN: There's more to come.
KING: It's a spirited debate worth having. Thank you all very much.