Entering "The Twilight Zone" with Robyn Blumner

clipped from trashotron.com

There is a fifth dimension beyond that which is known to man. It is a dimension as vast as space and as timeless as infinity. It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man's fears and the summit of his knowledge. This is the dimension of imagination. It is an area which we call "The Twilight Zone."

I'm totally there, dude.

I checked the online St. Petersburg Times for the latest idiocy penned by editorial columnist Robyn Blumner, but lo and behold her column almost makes sense.

When race is involved no case is minor, but Ricci vs. DeStefano gained blockbuster status after the Supreme Court nomination of Judge Sonia Sotomayor. She was part of an appellate panel that threw out the claims of the 18 white firefighters, one of whom is Hispanic, who lost out on a promotion due to the city's actions.

I believe that she and her fellow appellate judges were wrong as a matter of law and basic fairness.

That calls for a Borat-style "Whaaaaat?" Shocked incredulity stretching the vowel sound for emphasis.

Judge Sotomayor is the top choice of President Obama for the Supreme Court. Remember? And Obama is the guy who isn't George W. Bush. Is Ms. Blumner prepared to transfer her disaffection for Bush to his successor in office or what?

Not only does Blumner part with Sotomayor, she also acknowledges that the conservative justices she loves to not love drove the majority opinion with which she agreed.

In the majority opinion by Justice Anthony Kennedy and joined by the court's conservatives, the court said that test results cannot be discarded for the purposes of racial balance unless there is a strong showing that the test is deficient or there were other equally valid but less discriminatory tests readily available.

"Whaaaaat?"

Expecting Rod Serling any moment, now.

The analysis of the column is spot on throughout. So why do I say it almost makes sense?

Blumner wants Democrats in control of the federal government. She wants a Democrat in the White House. She tends to disparage conservatives on the Supreme Court. If she had her way, the Ricci case would have gone the other way courtesy of a collection of more liberal justices, albeit not to the point of ruling as Judge Sotomayor did. The dissent from the Supreme Court liberals would have remanded the case back to the lower court instead of reversing the decision.

Hey, well, credit where it's due. This week's column is good, and it tends to make a shambles of Blumner's overall approach to politics and law.



July 12, 2009: Changed "lastest" idiocy to "latest"--even though I half liked the typo.

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

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.