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Karl Frisch

Karl Frisch

Posted: July 20, 2009 12:42 PM

Forget Being "Borked," She's Been "Sotomayored"


Long before the pundit-driven 24-hour news cycle began poisoning the media landscape, the 1987 confirmation hearings of Reagan Supreme Court nominee Robert Bork played out in front of a national television audience. Though CNN broadcast the hearings live, the network was not yet available in many American homes. ABC, CBS, and NBC also ran live coverage while C-SPAN aired evening rebroadcasts.

Ultimately, 58 senators voted against Bork, many citing the extreme nature of his record. Bork, after all, was not a mainstream jurist. As a television ad by People for the American Way noted at the time, Bork "defended poll taxes and literacy tests, which kept many Americans from voting. He opposed the civil rights law that ended 'whites only' signs at lunch counters. He doesn't believe the Constitution protects your right to privacy. And he thinks that freedom of speech does not apply to literature and art and music."

Twenty-two years later, Bork is remembered more as a verb -- to "bork" -- which conservative columnist William Safire defined as to engage in a vicious attack on "a candidate or appointee, especially by misrepresentation in the media."

To accept that definition is to assume that Bork was the victim of "misrepresentation in the media," which by conservative standards means the media failed to buy their spin. To the right, facts, like the media, have an indisputable liberal bias.

So what then is it called when the right succeeds in spinning the conservative media, resulting in misleading and incomplete coverage of a judicial nominee?

The Bork hearings were a real fight to be sure, and the press loves fireworks. But 2009 is not 1987, and the fight over President Obama's nominee, Judge Sonia Sotomayor, pales in comparison to the Bork showdown of the '80s.

The political environment is different: Democrats hold the presidency and commanding majorities in the House and Senate. The nominee is different: Far from a fringe nominee like Bork, Sotomayor is mainstream and will likely be confirmed. The media is different: A multi-network, 24-hour news cycle driven by drama and conflict is led by the rise of new, powerful conservative outlets like Fox News, which have seen fit to suggest that misleading criticisms of Sotomayor have merit.

Since her nomination, conservatives have pushed baseless and even false accusations against Sotomayor: namely that she's made racist statements, and that her decisions are outside the judicial mainstream.

Media conservatives like Ann Coulter, Fox News' Tucker Carlson, and CNN's Lou Dobbs have described remarks Sotomayor made during a 2002 speech as racist. In fact, when Sotomayor said, "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," she was discussing the importance of judicial diversity in determining race and sex discrimination cases. Additionally, conservatives like Justices Clarence Thomas and Samuel Alito have noted the significant impact their personal background and experiences have had on their judicial thinking. Unfortunately, many news reports on this conservative-driven controversy have failed to include such important details.

Sotomayor has also been accused of being outside the mainstream by media conservatives who note that some of her decisions on the bench have been overturned by the Supreme Court. The Washington Times, a reliably conservative Beltway paper, uncritically quoted right-wing spin that Sotomayor's reversal rate -- 60 percent -- was "high." Would it have been difficult for the Times to note that since 2004 the Supreme Court has reversed more than 60 percent of all federal appeals court cases? Perhaps it would have required too much effort to let readers know that Alito, too, had his share of decisions reversed prior to his confirmation.

In an editorial, the Times also stated that if the Supreme Court were to reverse Sotomayor's decision in Ricci v. DeStefano -- which it eventually did by a 5-4 margin -- "It would be an extraordinary rebuke were a current nominee to be overruled on such a controversial case by the very justices she is slated to join." Hardly extraordinary. Remember, Alito had his own history of Supreme Court reversals prior to confirmation, as did Chief Justice John Roberts. Notably, Alito also received a "rebuke" by Justice Sandra Day O'Connor, whom he later replaced, regarding his dissent in the major abortion-rights case Planned Parenthood v. Casey. Incidentally, the justice whom Sotomayor would replace -- David Souter -- voted with the dissent in Ricci, agreeing with the 2nd Circuit that the city of New Haven did not violate Title VII in tossing out the firefighters' test results.

It's clear the conservative press has little interest in ascertaining the veracity of right-wing smears against Sotomayor before advancing them.

Far from the fictional underpinnings of the verb "bork," Judge Sotomayor has been the victim of journalistic malpractice. I guess you could say she's been "sotomayored."

Karl Frisch is a Senior Fellow at Media Matters for America, a progressive media watchdog and research and information center based in Washington, D.C. Frisch also contributes to County Fair, a media blog featuring links to progressive media criticism from around the Web as well as original commentary. You can follow him on Twitter and Facebook or sign up to receive his columns by email.

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