Grading PolitiFact: The Judical Confirmation Network and Judge Sotomayor

Fact-checking the fact checkers

The issue:



Click to enlarge.


The fact checkers

Robert Farley: writer, researcher

Greg Joyce: editor


Analysis

Farley initially frames this issue as though the JCN statement rests on one particular claim from Sotomayor:

If you've been following the story of Supreme Court nominee Sonia Sotomayor via cable news, you've undoubtedly heard this sound bite from a 2001 Sotomayor speech:

"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."

For many conservative detractors, the quote has formed the nexus of their opposition.

The story is not about "many conservative detractors," but about the statement from JCN.

A number of Republicans have expressed concern about the statement.

Any Democrats among them?

Asked repeatedly about Sotomayor's comments during the daily White House press briefing on May 27, 2009, Press Secretary Robert Gibbs admonished reporters not to make a judgment on an 8-second sound clip from a 40-minute speech. Gibbs said he was confident that when people looked at the totality of Sotomayor's speech, and the context of the comment in question, they would "come to a reasonable conclusion on this."

Was it Republican journalists asking repeatedly for Gibbs to address this issue? Does anyone get the sense that Gibbs was pawning off his answer to the question?

So we read the whole speech, titled "A Latina Judge's Voice," which was delivered by Sotomayor at the University of California, Berkeley, School of Law in 2001, and was later published in the Spring 2002 issue of Berkeley La Raza Law Journal.

Good so far. What is the reasonable conclusion?

Farley notes Sotomayor's description of the purpose of her speech:

The purpose of the speech, she said, was to "talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench."

Then he prefaces some quotations of Sotomayer with the following:

She then begins to discuss what it will mean to have more women and people of color on the bench.

Farley is partly correct. Before Sotomayor went on to discuss what it would mean to have more women and people of color on the bench, however, she stated that it was a good thing. After noting a few statistics relating to the growth of representation of women and minorities in the federal court system, she said this:

These figures and appointments are heartwarming. Nevertheless, much still remains to happen.
(Sotomayor, from the Spring 2002 issue of Berkeley La Raza Law Journal via the New York Times)

If the reader was inclined to take Farley's description to mean that Sotomayer's speech was dispassionate with respect to the influence of ethnicity, gender and race, then the reader may have been misled. Sotomayor does not simply clinically observe the effects of minority representation on the court, she judges them, by implication, as good effects.

Back to Farley:

Sotomayor spoke briefly about the contributions of women judges and attorneys in race and sex discrimination cases, while acknowledging that Supreme Courts made up completely of white men have made seminal decisions on those issues. It's in that context that Sotomayor made the statement heard round the world via YouTube.

Again, Farley is partially correct. If the white men are doing OK with those "seminal decisions" then how are we to assess the particular importance of the contributions of women judges and attorneys? Farley offers the reader no assistance in gauging the contribution of the surrounding context. Rather, he faintly implies that the context renders Sotomayor's controversial claim less controversial, and we are left hoping for additional explanation.

Good luck to us on that one.

Sotomayor later concludes that "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 that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage...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."

I am certainly no expert on the law, but when are opinions, sympathies and prejudices appropriate in rendering judgment according to the law? It is difficult if not impossible to make sense of Sotomayor's statement minus that information.

Farley either knows the answer and isn't telling, or does not think it important. Perhaps it is so obvious that he feels no need to mention it. And if that is the case, then I am the one at fault for not knowing it.

Perhaps Farley's lone citation of an expert will clear things up:

Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court, read the speech and concluded it amounted to little more than Sotomayor acknowledging that judges, like anyone, are products of where and how they grew up.

"Having that context can be valuable for a judge," Goldstein said. "There are some cases, like cases of discrimination, where if you have been in someone's shoes, you can better understand it."

Is that understanding with respect to the facts of the case, or with respect to a judge's feeling of empathy? If not the former, should the latter hold any sway at all? Goldstein's statement fails to offer us guidance as to which he thinks is valuable, much less how Sotomayor views it. I'd like to know the questions Farley asked of Goldstein.

By way of reminder, we are fact-checking the statement from the Judicial Confirmation Network that Sotomayor's statement shows that she thinks "that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench."

An appropriate reminder. Unfortunately, it ought to remind us that Goldstein's contribution sheds no real light on the answer.

We think the key words in that sentence are "ought to."

Good call, Farley. So what is Sotomayor's view?

Sotomayor says several times that she agrees judges should aspire to "transcend their personal sympathies and prejudices." However, she acknowledges that we are all informed by our experiences and that "personal experiences affect the facts that judges choose to see." And, she concludes, when it comes to things like race and sex discrimination, that kind of diversity of experience can be an asset.

So transcending personal sympathies and prejudices is good. And not always transcending them can be an asset (also good). So is Sotomayor talking out of both sides of her mouth or what?

In context, it's clear that Sotomayor isn't suggesting the intellect of Latina women is superior to that of white men, only that a greater diversity of experience and thought would be a valuable addition to the court system.

Whoops. We have disconnect.

Who said anything about "intellect"? Racism is not limited to the measure of intellect. Thus, pinning the meaning of Sotomayor's statements on the absence of a specific reference to superior intellect is a distraction--a red herring fallacy. So let's toss the red herring and see what's left:

Sotomayor is ... suggesting ... only that a greater diversity of experience and thought would be a valuable addition to the court system.

Valuable in what way? Farley offered us a bunch of quotations of Sotomayor that show her straddling the fence but with a strong inclination to come down on one side. Farley's expert, Goldstein, failed to clarify the situation. We can beat around the bush all we like, but Sotomayor herself offered the least ambiguous take on her meaning via the very statement in question:

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.

Contrary to the Farley whitewash, that statement cannot be reasonably taken to mean that it is merely good for the Supreme Court to have greater diversity of thought and experience. On the contrary, if it were true that a wise Latina "would more often than not reach a better conclusion than a white male who hasn't lived that life" then let us have nine Latina women on the Supreme Court. Playing the odds, we'll have better supreme court decisions.

Farley's final word:

And so we rate the Judicial Confirmation Network's statement Half True.

PolitiFact defines "Half True" statements as "The statement is accurate but leaves out important details or takes things out of context."

What important details were left out? The statements from Sotomayor to the effect that she would try to set aside her prejudice? Fair enough--but this PolitiFact entry fails according to that standard, as I shall show.

Farley's fact-checking approach was wrongheaded. He spent virtually all of his time assessing the JCN claim in terms of its relationship to a Sotomayer quotation, but the JCN statement does not even mention that quotation. The URL provided by PolitiFact fails to specify the relevant statement. Here it is, in its entirety:

JCN Statement on nomination of Sonia Sotomayor to the Supreme Court

May 26, 2009

Wendy E. Long, counsel to the Judicial Confirmation Network, on nomination of Sonia Sotomayor to the Supreme Court:

"Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.

"She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety. On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas. The Supreme Court is now reviewing that decision.

"She 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."
(judicialnetwork.com)

See? Not a word about the quotation. And Wendy Long's more detailed statement on JCN's behalf on Judge Sotomayor does not rest its case on that one quotation, instead belaboring the point based on Sotomayor's decision in the controversial Ricci v. DeStefano case.

It is appropriate to dock Long for leaving out the context of a quotation she did not even mention? I don't think so.

I would guess that Farley wanted to explain away the statement from Sotomayor, and the JCN statement was chosen as the vehicle for that defense.

Odd choice.


The grades:

Robert Farley: F
Greg Joyce: F

Probably the right finding on the "Truth-O-Meter," but the accompanying rationale will not remotely wash. Fact-checking is not like multiple choice where one can guess at the right answer and receive full credit. This is multiple choice where the answer does not count in the student's favor without the accompanying rationale ("Show your work").


Afterword:

About Sotomayor's speech: Contra (perhaps) Tom Goldstein, Sotomayor in her speech apparently sees judges as a product of the way they grew up only if that statement discounts much of the content of the speech based on its flirtings with self stultification.

Sotomayor aims for the ideal in judging, but appears to regard morality as relative.

What kind of judicial ideal, pray tell, stems from moral relativism?

I would have loved the role of fly-on-the-wall as President Obama and Judge Sotomayor discussed their common ground on constitutional interpretation. I hope the Senate will probe her judicial philosophy thoroughly. Perhaps it will open some eyes regarding the dangers of the "living Constitution."


June 2, 2009: Putting the second "I" in "judicial" since June 2, 2009. Also fixed a couple of other minor typos.