Nightly news shows ignore context of Sotomayor remarks, GOP's past embrace of "empathy"

In July 13 reports on the first day of Judge Sonia Sotomayor's Supreme Court confirmation hearings, the three evening network news broadcasts advanced conservative myths regarding her nomination. Both ABC's World News and CBS Evening News presented her 2001 comment that she hoped "a wise Latina woman ... would more often than not reach a better conclusion than a white male" out of context, while mentioning Republican senators' suggestion that Sotomayor harbored "prejudice" or that she was making a general statement that Latinas were better judges then white men. Neither broadcast mentioned that Sotomayor was specifically discussing the importance of judicial diversity in deciding "race and sex discrimination cases." Additionally, both World News and NBC's Nightly News reported Republicans' criticisms of a judge employing "empathy," but did not mention that numerous conservatives -- including Justices Clarence Thomas and Samuel Alito -- have previously praised compassion as a judicial attribute and highlighted the importance of the personal experiences of judicial nominees.

In their reports, ABC's Jan Crawford Greenburg and CBS' Wyatt Andrews presented Sotomayor's "wise Latina" remarks out of context. Crawford Greenburg reported that "Republicans seized on Sotomayor's comments that a wise Latina would reach a better conclusion than a white male. They said her empathy, as President Obama called it, was code: Sotomayor will decide cases based on feelings, not law." She then aired a clip of Sen. Jeff Sessions (R-AL) saying, "Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it's not law." Similarly, Andrews reported that "Republicans plan to focus on her speeches, not her judicial rulings, arguing her speeches hold the key to what she really thinks. Especially her now-famous remark that a wise Latina woman would reach a better conclusion than a white male." He then played a clip of Sen. Lindsey Graham (R-SC) saying, "I think your experience can add a lot to the court, but I don't think it makes you better than anyone else."

In fact, when Sotomayor asserted, "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 specifically discussing the importance of judicial diversity in determining race and sex discrimination cases. Indeed, as Media Matters has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

Additionally, Crawford Greenburg and NBC's Pete Williams reported Republicans' criticisms of a judge having "empathy" -- but not conservatives' and Republicans' previous praise of that quality as a judicial attribute. Williams reported, "[M]any committee Republicans said the first Latina nominee might be swayed by her own biases, especially considering that President Obama said he wanted a judge with empathy." He then aired clips of Republicans' concerns about her employing "empathy" -- for instance, Sen. Charles Grassley (R-IA) saying, "President Obama clearly believes that you measure up to his 'empathy' standard. That worries me." But neither Crawford Greenburg nor Williams explained that conservative Supreme Court nominees talked about the relevance of their experiences during their confirmation hearings or that Republicans have previously made similar comments. For instance:

• Alito asserted during his 2006 confirmation hearing: "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."

• During Thomas' confirmation hearing, Sen. Herb Kohl (D-WI) asked, "I'd like to ask you why you want this job?" Thomas replied in part: "I believe, Senator, 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. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, 'But for the grace of God there go I.' So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes and I could bring something different to the Court. And I think it is a tremendous responsibility and it's a humbling responsibility and it's one that if confirmed, I will carry out to the best of my abilities."

• Then-President George H.W. Bush cited Thomas' "great empathy" in his remarks announcing his selection of Thomas to serve on the Supreme Court.

• In September 10, 1991, testimony during Thomas' confirmation hearings (accessed in the Nexis database), Sen. Kit Bond (R-MO) stated: "Though his skills as a lawyer and a judge are obvious, they are not, in my view, the only reason that this committee should vote to approve Judge Thomas's nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans."

• Former Sen. Strom Thurmond (R-SC) said during the confirmation hearings for Justice Ruth Bader Ginsburg that "compassion" was one of the "special qualifications I believe an individual should possess to serve on the Supreme Court," adding that "[w]hile a nominee must be firm in his or her decisions, they should show mercy when appropriate." Similarly, during the confirmation hearings for Justice Stephen Breyer, Thurmond said "compassion" was among "the special criteria which I believe an individual must possess to serve on the Supreme Court."

• Former Sen. Al D'Amato (R-NY) stated during the September 30, 1997, Senate Judiciary Committee hearing on the confirmation of several judicial nominations: "I predicted to this committee, almost five years ago, that Judge [Sonia] Sotomayor would be an exemplary, outstanding justice. She has demonstrated that, repeatedly. She has shown compassion, wisdom, one of the great intellects on the court."

• Additionally, during Chief Justice John Roberts' confirmation hearing, former Sen. Mike DeWine (R-OH) stated: "We need you to bring to the court your compassion and your understanding for the lives of others who haven't been as successful as you have been." DeWine continued: "We need you to bring to the court your strong commitment to equal justice for all. And we need you to always remember that your decisions will make a real difference in the lives of real people."

From the July 13 edition of ABC World News with Charles Gibson:

CRAWFORD GREENBURG: After weeks of public silence, Sotomayor was sworn in and took the witness chair --

SEN. PATRICK LEAHY (D-VT): And now the floor is yours.

CRAWFORD GREENBURG: -- to answer critics who have said she will let her feelings and empathy trump her impartiality.

SOTOMAYOR: Many senators have asked me about my judicial philosophy. Simple: fidelity to the law.

[...]

CRAWFORD GREENBURG: Before she spoke, the senators painted starkly different pictures of Sotomayor. Democrats highlighted her 17 years of experience as a federal judge.

LEAHY: Let no one distort the judge's record.

CRAWFORD GREENBURG: But Republicans seized on Sotomayor's comments that a wise Latina would reach a better conclusion than a white male. They said her empathy, as President Obama called it, was code: Sotomayor will decide cases based on feelings, not law.

SESSIONS: Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it's not law.

From the July 13 edition of the CBS Evening News with Katie Couric:

ANDREWS: But Republicans plan to focus on her speeches, not her judicial rulings, arguing her speeches hold the key to what she really thinks.

GRAHAM: It just bothers me when somebody --

ANDREWS: Especially her now-famous remark that a wise Latina woman would reach a better conclusion than a white male.

GRAHAM: I think your experience can add a lot to the court, but I don't think it makes you better than anyone else.

From the July 13 edition of NBC's Nightly News with Brian Williams:

WILLIAMS: As her mother, Celina, fought back tears, Judge Sotomayor recounted her journey. Public housing in the Bronx, star student at Princeton and Yale, then lawyer, prosecutor, and federal judge. Then she sought to respond to claims that her speeches suggest she would allow her own biases to help guide her as a judge.

SOTOMAYOR: Many senators have asked me about my judicial philosophy. Simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law.

WILLIAMS: But many committee Republicans said the first Latina nominee might be swayed by her own biases, especially considering that President Obama said he wanted a judge with empathy. The committee's senior Republican said that quality has two sides.

SESSIONS: That is, of course, the logical flaw in the "empathy" standard. Empathy for one party is always prejudiced against another.

WILLIAMS: At times, the president's "empathy" remark seemed as much a focus of the hearing as his nominee.

GRASSLEY: President Obama clearly believes that you measure up to his "empathy" standard. That worries me.

WILLIAMS: Though she'll undoubtedly be pressed repeatedly about it in the next few days, she tried to defuse the issue.

SOTOMAYOR: My personal and professional experiences help me to listen and understand, with the law always commanding the result in every case.