The Right's Supremely Flawed Opening Argument Against Sotomayor

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President Obama could have nominated just about anyone to fill Justice David Souter's seat on the Supreme Court, and the conservative movement would have reacted just as they have to his nomination of Judge Sonia Sotomayor.

Don't take my word for it. The Right made its intention to oppose Obama's nominee -- no matter who it was -- abundantly clear in the weeks leading up to the president's selection. They see the nomination process not so much as a necessary function of our democracy but as an opportunity to, in part, "help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats"; "build the conservative movement"; and "prepare the great debate with a view toward Senate elections in 2010 and the presidency."

Worse than its conviction of the president's nominee for high crimes against conservatism -- before there's even been a trial -- is the convoluted "evidence" media conservatives have presented to the American people as part of its opening argument against Judge Sotomayor.

By now you've no doubt heard Exhibit A -- Sotomayor's February 2005 comment at a Duke University School of Law forum that the "court of appeals is where policy is made." This, they claim, proves that Sotomayor would be little more than an evil activist jurist on the bench. Her words -- taken out of context time and again by conservative and mainstream media outlets -- make clear that Sotomayor was simply explaining the difference between district courts and appeals courts. Her comments were in sync with the Oxford Companion to the Supreme Court of the United States' explanation of the federal appellate court's "policy making" role. That's a view even conservative legal god Antonin Scalia seems to share and even go beyond, having articulated the "policy making" role of the courts himself and noting that "the judges of inferior courts often 'make law.' "

For Exhibit B, we find media conservatives in a huff over not only Obama's stated intention to nominate someone possessing "empathy" among other qualifications but also Sotomayor's 2001 comment that a "wise Latina woman" might bring a little something extra to the bench in adjudicating race and sex discrimination cases. Conservatives in the media leapt at the president's "empathy" comment, typically portraying it as proof of Obama's intention to nominate a liberal activist to the Supreme Court rather than a jurist committed to the Constitution, even though the president said that his nominee would demonstrate both.

Equally disjointed has been the Right's reaction to Sotomayor's "wise Latina" comment, as numerous conservatives in the media have savaged her as a racist and a bigot. Radio talker Rush Limbaugh, de facto leader of the conservative movement, said of Sotomayor, "So here you have a racist. You might -- you might want to soften that, and you might want to say a reverse racist. ... Obama is the greatest living example of a reverse racist, and now he's appointed one." Marching in lockstep with El Rushbo, Fox News crazy man Glenn Beck said Sotomayor's comment "smacks of racism" and is "one of the most outrageous racist remarks I've heard," adding the following day on his radio show his assessment that "I think she's a racist. I think she has decided things based on race." Never one to skip an opportunity to slight a person of Hispanic descent, CNN host Lou Dobbs called Sotomayor's comment "racist," describing her nomination as "pure, pure absolute pandering to the Hispanics, and, you know, filling in the box on one more minority."

MSNBC's Ed Schultz had it right when he said that conservatives were suffering from a case of "selective amnesia" when it comes to the importance of judicial empathy -- lest we forget, then-President George H.W. Bush cited Clarence Thomas' "great empathy" when announcing his selection of Thomas to serve on the Supreme Court, and the words of Thomas during his confirmation hearing; responding to the question of why he "want[ed] this job," Thomas said in part: "I believe ... that I can make a contribution, that I can bring something different to the court, that I can walk in the shoes of the people who are affected by what the court does."

As if its willfully misleading and downright incendiary attacks weren't enough, in exhibits C and D we find media conservatives attacking Sotomayor's effectiveness as a jurist as well as the summa cum laude Princeton grad and Yale University law review editor's intellect. Take this gem from The Washington Times, for example. The conservative rag uncritically quoted Wendy Wright, president of the right-wing fringe group Conservative Women for America, saying that Sotomayor's reversals -- which the Times reported as three of five cases, or 60 percent -- were "high." Would it have been too hard for the Times to note that since 2004 the Supreme Court has reversed more than 60 percent of all federal appeals court cases it considered each year? Perhaps it would have been too much effort for the Times to let its readers know that conservative darling Samuel Alito had his share of decisions reversed by the Supreme Court prior to his confirmation.

If this is the Right's idea of an opening argument, one can only assume how equally misleading and disingenuous its trial of Sotomayor will be. The media should do a better job of shooting down these demonstrably false attacks rather than perpetuating them as one side of a he-said-she-said debate.

What we need are a few good courtroom reporters. After all, if coverage thus far is any indication, we've already got plenty of stenographers.

Karl Frisch is a Senior Fellow at Media Matters for America, a progressive media watchdog, 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 sign-up to receive his weekly column by email.

Comments

[PrudenceWorthington]

How positively fascinating that conservative entertainers, some of whom blame the swine flu on Mexican immigrants, decide to play the race card on a vintage quote. Are we really to believe the misinterpretation of this phrase contains racial discrimination against white men? The lady in question did not say "this chica is smarter than some old cracker 'cause I came up in the projects".
I have to admit I have been anticipating some racial pot stirring since the election, but could not have predicted this pathetic course. Mark my words, Lambs, the door is now ajar for the conservatives to finally enter and admit they just don't like a black man in the White House.

[rwext]

Sorry, if you substitute and replace her with Alito and reverse all her racial and gender and ageist references that person would be excoriated by the left.... And Schultz and Olbermaddow and even Huff have been none to convincing in their attempts at rationalizing her

[bannorhill]

She said “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.”

If Judge Alito had said “a wise White man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.” would the press and the Democrats have supported him?

The answer is no! He would have been branded a racist bigot and run out of town. That is a double standard.

[CelticMajic]

Great point and I doubt you will get a single reply--what can her defenders say to it anyway?

[PrudenceWorthington]

Historically, white men, especially those of the upper classes, have not been the victim of discrimination and therefore, don't empathize well with those who have suffered. Your arguement is doubly flawed due to the lack of any derogatory content in her initial comment.
P.S. Do you think the failing companies like AIG or GM are run by white men?

[elspeth49]

The sentence starts with "I would hope that a wise...." Those opening words make all the difference. I would hope that people read the whole article, not just what the MSN reports!

[CelticMajic]

I have read it and still maintain that if Alito or Roberts had said the exact same thing, to include the "I hope" phrase, they would have been call racist and forced to withdraw.

[jbl inAZ]

"What we need are a few good courtroom reporters. After all, if coverage thus far is any indication, we've already got plenty of stenographers."

Priceless. And so true.

[Pleneras]

co-signed.

[DRaymond]

I think that what is this is really going on here is an indication of how utterly rudderless the Republican party is. Who did you cite as your sources for the opposition to Sotomayor? Rush Limbaugh, Glenn Beck, and Lou Dobbs. If you wanted to toss in a couple of more you might have included Bill O'Riley's talk about hwo liberals consider white men a problem and nominate women and minorities to fix that problem.

The common thread, are media celebrities eager for the next Nielsen or Arbitron ratings only. Normally a party woule have an actual leader who would insure that the opposition was conducted with the respect and gravity and decorum worthy of the importance of the decision and to insure that the party maintained a public image that they were seady and responsible enought to handle the reins of power.

[BeasleysMom]

Tom Tancredo is associated with the Rocky Mountain Foundation which is dedicated to limiting and perhaps totally ending imm igr ation. They are known for their b ig otry. I called this afternoon to complain about Tancredo, but the woman who answered said she "didn't know anything about his appearances on TV)" and that, of course, no one else was their to come to the phone!" I sent them an email instead. There is a "visitors' book" where a number of conservatives have left supportive comments for Tancredo AND their email addresses! I would like to send my comments to tthe supporters also, but I don't know if I will have time. How about you?

www.therockymountainfoundation.org

[BeasleysMom]

In Colorado, Tancredo is associated with the Rocky Mountain Foundation which is dedicated to limiting and perhaps totally ending imm igr ation. They are known for their b ig otry. I called this afternoon to complain about Tancredo, but the woman who answered said she "didn't know anything about his appearances on TV)" and that, of course, no one else was their to come to the phone!" I sent them an email instead. There is a "visitors' book" where a number of conservatives have left supportive comments for Tancredo AND their email addresses! I would like to send my comments to tthe supporters also, but I don't know if I will have time. How about you?

www.therockymountainfoundation.org

Favorite Flag as abusive Posted 06

[Yamunation]

The GOP could be sued for slander.
That's how vicious they are.

[Pleneras]

I agree. I hope the Hispanic American Organizations take them to court.

[lunchlady]

What happened to the intellectual might of the GOP? It used to have some smart people, but now they've either migrated or they're keeping their mouths shut.

[LeftRight]

I liked Jimmy Fallon's comment the other day, when he stated that rushbo the great had called Sotomayor a reverse racist: "Well that just shows that he's a reverse genius."

[ddsawyer]

I recently heard that Justice Thomas had not asked a single question of anyone appearing before the Supreme Court for more than a year. Could that possibly be true? and is there some explanation?

[rubberstamp]

I frequently hear that he is the most inactive of all the judges. Has not writen a single decision on his own and usually just votes with Scalia.

[LetMeUnderstandThis]

He doesn't get involve in debates amongst other justices, He is a Fuchking waste of air.

[Lili Fuller]

Yes, it is true. There was a story on NPR where Nina Totenberg, NPR's legal affairs correspondent in Washington, who covers the Supreme Court, mentioned that Thomas never says a word during a case. I'm guessing that since he only had 15 months judicial experience before joining the Supreme Court, he knows that he is way out of his league on Constitutional law. His addition to the court was made purely on political grounds, not on judicial experience and knowledge.

[lunchlady]

Not surprised. I watched the Anita Hill hearings and all the other stuff around Thomas' confirmation hearings and I was not impressed by him. Nothing he's done on the court has impressed me. My gut feeling back then was that he was lying and she wasn't. I hope he feels very lucky to be sitting in that illustrious chair.