Sotomayor & SCOTUS coverage

As you follow the announcement of President Obama's Supreme Court nomination I thought Media Matters' most recent research might be helpful to you. Below you will find information on the following themes in media coverage of Obama's presumed Supreme Court nominee Sonia Sotomayor. Please let me know if you have any questions or if you would like to book a s guest from Media Matters.

Section I: Sonia Sotomayor

• Media figures citing anonymous sources when reporting criticism of Sotomayor;
• Distorting non-anonymous sources? comments about Sotomayor;
• Misinterpreting Sotomayor?s 2005 statements about making policy from the bench.

Media Matters has also noted the following major themes in the media's coverage over the past few weeks of the impending Supreme Court nomination announcement:

Section II: SCOTUS Nomination

• Conservative media figures labeling progressive justices as activists
• Misleadingly cropped footage of Obama?s comments about what he is looking for in a nominee
• Ignoring GOP flip-flops on judicial filibusters in reporting; 
• Suggesting that Obama's choice for a nominee would be based on their ethnicity as opposed to their credentials.

Ben Fishel
(202) 756-4145
Bfishel@mediamatters.org

SECTION I: Sonia Sotomayor

USING ANONYMOUS SOURCES TO ATTACK SOTOMAYOR

Several media figures have cited anonymous sources criticizing Sotomayors temperament, work ethic, and intellect.

 The New Republics Jeffrey Rosen, in his much-discussed article The Case Against Sotomayor, claimed former law clerks for other judges on the Second Circuit were concerned that Sotomayor was not that smart and kind of a bully on the bench. (5/4/09)

 Fox News Andrew Napolitano, who described his source as someone who was a clerk for another federal judge, claimed Sotomayor has a reputation for not being a very hard worker. (5/4/09)

However, the use of clerks as sources has been called extremely problematic.

 American University Law Professor Darren Hutchinson wrote: Most clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge.

 Hutchinson added: The American Bar Association uses a much more expansive and generally accepted analysis (including talks with a broad cross-section of lawyers and judges) to evaluate judicial performance. After President Clinton nominated Sotomayor to the Second Circuit in 1997, the ABA reported that a substantial majority of respondents ranked her as well qualified, while a minority found her qualified.

DISTORTING ACTUAL SOURCES COMMENTS

When Rosen did cited actual sources in his article, he distorted what those sources actually said.

 Rosen cropped comments from Second Circuit judge Jose Carbranes, portraying it as another example of someone questioning Sotomayors intellect. But Rosen neglected that Carbranes also said: She's tough and tenacious as well as smart.

 Rosen falsely asserted that a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. But Winters footnote neither says nor suggests any such thing.

MISINTERPRETING SOTOMAYORS 2005 COMMENTS

Media figures have distorted comments Sotomayor made at a 2005 Duke University School of Law forum, claiming she said it is her job to make policy from the bench.

 Fox News Jane Skinner claimed Sotomayor is coming under some fire for making some commentssaying that its her job, really, to make policy from the bench. (5/7/09)

In fact, Sotomayor, in responding to a question about the experiences of a district court clerkship versus a circuit court clerkship, said:

 [T]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.

 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.

SECTION II: SCOTUS Nomination

REVIVING LIBERAL ACTIVIST MYTH

Conservative media figures wasted no time reviving the tired myth that progressive judges are activists and conservative judges are constitutionalists.

 Pat Buchanan asserted that "conservatives do have and Republican do have a real good issue on the court when you ask people, 'do you want conservative constitutionalists as justices or liberal activists. '" (5/1/09)

 Sean Hannity says the chancesare zero that radical activist Obama will select a justice who will follow the rule of law and the Constitution. (5/4/09)
However, several studies have found that conservative justices were more likely to engage in judicial activism.

 A 2005 study by Yale Universitys Paul Gewirtz and Chad Godler found that those Supreme Court justices most frequently labeled conservative were more likely to strike down statues passed by Congress.

 A recently published study by Cass R. Sunstein and Thomas Miles, found that conservative justices were more likely to strike down decisions by federal regulatory agencies.

CROPPING OBAMAS EMPATHY COMMENTS

Obamas comment that he viewed that quality of empathy as an essential ingredient for a nominee has been misleadingly cropped to suggest that he does not care about a commitment to follow the law.

 After airing the cropped footage, Major Garret said: That aggravates those who believe the justices should follow the Constitution and legislative intent. (5/1/09)

The full context of Obamas comment shows that he also wants a nominee who honors the Constitution.

 In fact, the very next sentence of Obama comments was: I will seek somebody who is dedicated to rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.

 Obama added: I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our times.

IGNORING INCONSISTENCY ON JUDICIAL FILIBUSTERS

The media has consistently ignored the GOPs flip-flops on the appropriateness of judicial filibusters.

 The New York Times, the Politico, and Roll Call all recently reported on Senate Republicans threat to filibuster Obamas judicial nominees under certain circumstances without reporting on Republicans past support.

A number of Republican senators took the position that filibusters of President Bushs nominees were unconstitutional or otherwise ran counter to constitutional principles.

 Sen. Orrin Hatch: In a January 2005 op-ed, Hatch wrote The filibusters used to block such votes have mired the judicial-confirmation process in a political and constitutional crisis that undermines democracy, the judiciary, the Senate, and the Constitution.

 Sen. Sam Brownback: In a July 2005 op-ed, Brownback wrote: Finally, neither filibusters nor supermajority requirements have any place in the confirmation process. Those tactics of obstruction should become the historical relics they deserve to be.

 Sen. Chuck Grassley: During a May 2005 press conference, Grassley stated: What we're seeing now is unprecedented And we can't find anywheres [sic] in the Constitution that says a supermajority is needed for confirmation.

 Sen. Jeff Sessions: During a May 2004 floor statement, Sessions stated: The vote, historically, since the founding of this Republic, is a majority voteThat is what we have always done.

 Sen. James Inhofe: On May 2005, the Tulsa World reported that Inhofe want[ed] to limit the current battle over the filibuster to judicial nominees and retain the practice on executive branch nominees and legislation and quoted Inhofe as saying I don't think it should be used where it is contrary to the Constitution.

 Sen. Tom Coburn: The 2005 Tulsa World article also reported that Coburn disagrees with Inhofe, saying no presidential nomination should ever be filibustered.

 Sen. Pat Roberts: A November 2003 Wichita Eagle article reported that Roberts said that [t]he use of the filibuster essentially gives the minority veto power, which the Constitution didn't intend.

SUGGESTING OBAMA WOULD CHOOSE A NOMINEE BASED ON ETHNICITY

Should Obama choose to diversify the court, it would not mean that as some media figures have suggested his nominee was not chosen based on merit.

 Pat Buchanan suggested that Obama should pick a liberal, Democrat John Roberts but he thought that Obama would go for a minority, a woman, and/or a Hispanic because he sees that as their turn. (5/1/09)

 Fox Nation asked Why arent white males being considered for Supreme Court (5/4/09)

An alternative argument is that qualified women and minorities have been consistently excluded from the court.

 As CNNs Jeffrey Toobin said More than half the law student in the United States are now women. Almost half the lawyers in the United States are women. Theres only one out of nine justices on the Supreme Court who are women. (5/1/09)

DISTORTING OBAMAS 2001 COMMENTS

Several media figures, echoing Matt Drudge, falsely claimed that Obama said it was a tragedy that the Court had not pursued the redistribution of wealth.

 The Drudge Report featured a headline saying 2001 OBAMA: TRAGEDY THAT REDISTRIBUTION OF WEALTH NOT PURSUED BY SUPREME COURT. (10/27/08)

 In an interview with John McCain Sean Hannity said Sen. [Barack] Obama said it's a tragedy, quote, that redistribution of wealth was not pursued by the Supreme Court. (10/28/08)

In fact, the tragedy Obama identified was that the civil rights movement became so court-focused in trying to affect political and economic justice.

 Audio from the 2001 interview with Chicago Public Radio station WBEZ, Obama stated: And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change.

 Later during the same 2001 interview, Obama stated: You know, maybe I'm showing my bias here as a legislator as well as a law professor, but, you know, I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way.