Both the Coalition for Constitutional Values, a liberal group supporting Sonia Sotomayor’s nomination to the Supreme Court, and the Judicial Confirmation Network, a conservative organization that opposes President Obama’s choice, have ads up attempting to enhance or undermine her confirmation prospects.
The ads are accurate and civil. JCN’s spot, which is running only on the Internet at this point, quotes extensively from Sotomayor’s own remarks about how she hoped that a "wise Latina woman with the richness of her experiences would more often than not reach a better conclusion" than a white male without those experiences. The entire soundtrack of the Coalition for Constitutional Values ad is from Obama’s May 1 remarks about Justice David Souter’s departure; biographical bullet points and photos of Sotomayor appear on the screen.
So far, so good. Of course, the average number of days from the announcement of a Supreme Court nominee until his or her confirmation, for the last four justices, has been 72 – plenty of time for mischief to materialize. We’ll be watching.
These early ads lack the vitriol of some that have run against previous nominees to the high court. In 2005, for instance, we wrote about one that falsely implied nominee John Roberts had supported abortion clinic bombers. Then again, it’s likely that at least two months will pass before Sotomayor’s nomination comes up for a vote in the full Senate – plenty of time for these and other groups to cut more ads. We’ll keep readers posted on any new spots, but meanwhile, here’s our take on the current crop.
The Judicial Confirmation Network has been in operation for several years, while the Coalition for Constitutional Values is populated by several well-known organizations normally active on the liberal side of judicial nominations, including the Alliance for Justice.
President Obama: I will seek somebody with a sharp and independent mind. Someone who understands that justice isn’t about some abstract legal theory, it is also about how our laws affect the daily realities of peoples’ lives, whether they can make a living, and care for their families, whether they feel safe in their homes. I will seek somebody who is dedicated to the rule of law, who shares my respect for constitutional values on which this nation was founded.
The quotes used in the ad are a fair representation of what he said, although the group chose to leave out Obama’s mention of "empathy," which we quote here:
Obama, May 1: I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.
The reason for omitting those words from the ad may be that "empathy" has become something of a flash point among critics on the right. Here’s Republican Sen. Lindsey Graham of South Carolina on "Fox News Sunday" with Chris Wallace a month later:
Sen. Graham, May 31: If I do that, if I look at her philosophy, her legal philosophy, which I think is very activist in nature – this empathy word is just a code word for activism.
We note in passing that empathy wasn’t considered a bad word when President George H.W. Bush used it when he introduced Clarence Thomas as his Supreme Court nominee in 1991:
Bush, July 1, 1991: I have followed this man’s career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor.
The visuals paired with Obama’s voice in the group’s ad are simply still photos of Sotomayor mixed with some biographical text, such as her educational background. Some bits are factual; others are clearly opinion: "Principled, fair-minded, independent," for example. We’ll leave it to readers to decide whether those sorts of judgments about Sotomayor’s character are accurate.
A Lifetime of Experience
The Judicial Confirmation Network’s Internet ad highlights the same Sotomayor statements that have been Topic A for conservatives over the last week. The narrator reads Sotomayor’s remarks from a 2001 lecture she gave at Berkeley’s Boalt School of Law about how her background affects her work.
Judicial Confirmation Network Ad:
"Equal Justice Under Law?"
Narrator: President Obama has nominated Judge Sonia Sotomayor to the U.S. Supreme Court. He’s said why he thinks Judge Sotomayor belongs on the nation’s highest court. But what does she have to say for herself? Here’s Judge Sotomayor in her own published words:
Narrator: "Our experiences as women and people of color affect our decisions. 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. …Whether born from experience or inherent physiological or cultural differences…our gender and national origins may and will make a difference in our judging. … Personal experiences affect the facts that judges choose to see."
So, what is she saying?
Sotomayor: Court of appeals is where policy is made. And I know, I know this is on tape, and I should never say that…
Narrator: Equal justice under law, or under attack? America deserves better.
The quotes in the JCN ad are certainly accurate. She was speaking of the disproportionately low representation of Latinos and women in the judiciary – noting that these groups make up only 10 out of 147 active circuit court judges and 30 out of 587 active district court judges. And she expressed thoughts such as this: "I … believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group."
But she also made the remark about hoping "that a wise Latina woman with the richness of her experience" would usually reach a better decision than a white man. The Obama administration has indicated that she will back down from that statement, which isn’t playing well.
Obama, May 29: I’m sure she would have restated it, but if you look in the entire sweep of the essay that she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through.
And, as Fox’s Wallace pointed out, Justice Samuel Alito said something not dissimilar during his confirmation hearing in 2006 after being nominated by President Bush:
Alito, Jan. 11, 2006: When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.
The ad concludes with a clip of Sotomayor’s statement that the "Court of Appeals is where policy is made," which is, for conservatives, a red flag indicating an "activist" judge of the kind they often critique. We provided some context for her remark in a recent post on the FactCheck Wire.
While the air wars have been relatively calm, we’ve answered some questions about things being said about Sotomayor by figures like Rush Limbaugh and gun rights advocates. As we wrote in one Ask FactCheck item, it’s not true that 80 percent of the judge’s appellate rulings have been overturned by the Supreme Court. First, only five of them have been reviewed by the Court at all, and second, of those, three were reversed. In another item, we confirmed that Sotomayor has ruled that the Second Amendment doesn’t apply to states and localities, thus those non-federal jurisdictions can regulate and ban weapons.
– by Viveca Novak
Fox News Sunday with Chris Wallace. Fox News Network, 31 May 2009.
Moore, Kristina. “Timing Sotomayor’s Senate Confirmation,” Scotusblog.com, 26 May 2009.
Tapper, Jake and Sunlen Miller. “POTUS Interrupts Press Briefing to Announce Souter’s Retirement, Announce Qualifications for Next Supreme,” Political Punch, abcnews.com. 1 May 2009.
Garrett, Major. “Obama Pushes for ‘Empathetic’ Supreme Court Justices,” foxnews.com. 1 May 2009.
Tumulty, Karen. “Why God Invented C-Span,” Swampland, time.com. 29 May 2009.
Sotomayor, Sonia. Lecture: “A Latina Judge’s Voice,” The New York Times. 15 May 2009.