Grading PolitiFact: Limbaugh on Judge Sotomayor

"PolitOpinion" is more like it.

Fact-checking the fact checkers

The issue:

Was Rush Limbaugh making a statement of fact or stating an opinion? Does the St. Petersburg Times subject its own editorials to this type of fact-checking?


The fact checkers:

Robert Farley: writer, researcher
Greg Joyce: editor


Analysis:

In identifying the issue, above, I asked whether Limbaugh was stating fact or opinion. Even opinion journalism, of course, can typically get boiled down to fact through careful analysis. Has PolitiFact given us careful analysis?

While many Republican leaders have been publicly cautious with their opinions about President Obama's nominee for the Supreme Court, Sonia Sotomayor, radio talk show host Rush Limbaugh has been crystal clear about his opposition.

At a newspaper famous for its narrative leads, we should register no surprise that Farley takes some time in getting to the point. Limbaugh's opposition to the Sotomayor nomination is not particularly relevant to whether his statement is true or false.

In making his case, Limbaugh cited a Sotomayor ruling that has drawn scrutiny from critics this week.

"She ruled against the white firefighter - Ricci and other white firefighters - just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past," Limbaugh said. "The law was totally disregarded."

Limbaugh is referring to Ricci vs. DeStefano, a legal case involving firefighters in New Haven, Conn. A group of mostly white firefighters claimed reverse discrimination after the city threw out the results of promotional exams because white firefighters fared significantly better than black firefighters.

Farley just needed a few paragraphs to get rolling. Yes, Limbaugh's statement draws from the Ricci v. DeStefano decision.

Farley provides an account of the background, alluding to Sotomayor's role on the three judge panel that supported the original district court ruling. Farley's version of the dissent to Sotomayor's brief opinion from appeals court judge Jose Cabranes deserves special attention:

The brevity of that response, and its lack of analysis, rankled one dissenting appeals court judge, Jose Cabranes.

Farley goes on to quote Cabranes, but his version substantially downplays the weight of Cabranes' objection. Though Cabranes' withering dissent does suggest that he was "rankled," it is also true that five other judges joined in the dissent quoted by Farley. The district court voted narrowly to support Sotomayor and the three judge panel 7-6. If the other five dissenting judges were not similarly rankled then they would have done well not to add their names to the Cabranes-authored dissent.

One would never know this part of the story from Farley's account. Indeed, nothing apart from the mere word "dissenting" would suggest the Cabranes quotation came from a legal document. The average reader would engage in little more than blind supposition in guessing the truth of the matter.

Farley writes that the case subsequently ended up with the Supreme Court of the United States, but remains mum regarding that journey. ScotusBlog fills in the missing segment of the time line:

After the Second Circuit issued its initial summary order, the white firefighters filed a petition for certiorari. However, after the panel issued its per curiam opinion, the same firefighters, now represented by former Texas Solicitor General Greg Coleman, filed a second cert. petition, claiming that they feared the first petition had been rendered moot. The Court consolidated the cases and granted cert., largely using the questions presented by the first petition; however, because the second petition better tracks the counsel who wrote the merits briefs and will argue the case, this post focuses on that petition.

The grant of a writ of certiorari moves the case to the Supreme Court. The granting of the writ, on its face, helps validate objections from the dissenting opinion. Farley did not mention that, either.

Back to Farley:

That Sotomayor ruled against "white firefighter Ricci and other white firefighters" is undisputed. But this is a very complex legal case and Limbaugh misleads when he boils down the ruling by Sotomayor (and two other appeals court judges), saying it was made, "just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past. The law was totally disregarded."

This paragraph from Farley helps greatly in illustrating where his effort at fact-checking goes astray.

Supposedly Limbaugh misleads by oversimplifying the case. But Limbaugh was not trying to communicate the intricacies of the law involved. That type of detail has always been antithetical to high Arbitron ratings. It is also antithetical to print journalism, which carries over even to Internet formats. The Times would experience great difficulty in surpassing the "Half True" standard in the daily paper using the standard Farley would use to gauge Limbaugh.

Suppose we'll ever see this graphic permanently embedded in the Times' masthead?



Don't bet on it.

In my past assessments of PolitiFact, I have mentioned the principle of charitable interpretation. That principle comes into play in this case, partly owing to Limbaugh's chosen genre. He does opinion journalism. As such, a great deal of what he says on the air is an editorial opinion and not offered as a strictly factual account.

Following the aforementioned principle, the conscientious fact checker should assess the intent of the statement in question. Was Limbaugh, in fact, trying to communicate to his audience that Sotomayor literally employed absolutely no reference to any law? Farley seems to have taken it that way, judging from the path he took.

It is both more charitable and more likely that Limbaugh was communicating in the looser sense that most of us use conversationally. For example, his statement should be viewed as consistent with the view that Sotomayor's decision ignored significant portions of the law. And for that claim, Limbaugh would have the support of the six judges who dissented from the three judge panel--as well as potential support from the Supreme Court, pending its opinion on the case.

The rest of the PolitiFact piece, in effect, drags the aforementioned straw man into the arena and gives it a thorough trouncing.

We cite some of this not just to make your head hurt, or to make the case that the ruling was correct -- that will ultimately be up to the Supreme Court -- but to show the complicated legal issues involved, as well as the fact that the district court did, in fact, make reasoned legal arguments and cited numerous legal cases to underpin its decision. In other words, you may not agree with the conclusions, but it's wrong to suggest the judges "totally disregarded" the law. Nor did Sotomayor's panel or the district court ever suggest that the city ought to give preferential treatment to women and minorities. And so we rule Limbaugh's statement Barely True.

Certainly it would be wrong to suggest that the the panel "totally disregarded" the law in a literal and absolute sense. However, it is exceptionally doubtful that Limbaugh intended his statement in a literal and absolute sense.

As mentioned above, Limbaugh was doing what he normally does on his show: Offer editorial comment. PolitiFact misleads and offers its readers a disservice by ignoring the context (genre) of Limbaugh's statement. And by disagreeing with what was almost certainly an editorial opinion, PolitiFact joins Limbaugh in the opinion journalism game.

But at least Limbaugh is forthright in distinguishing his show from an attempt at objective journalism.

I see little point in giving a fact check rating to Limbaugh's claim. If the Supreme Court overrules Sotomayor, then Limbaugh may seem vindicated. If the opposite occurs then perhaps Sotomayor looks vindicated. But if there is an objective standard for judging this one, I doubt anyone can argue it without dissent in this life.

PolitiFact further besmirched itself by taking up this one.


The grades:

Robert Farley: F
Greg Joyce: F