Fox's Kelly, ABC's Greenburg skew Sotomayor remark about "Latina," "white male" judges

››› ››› NATHAN TABAK & MORGAN WEILAND

Megyn Kelly and Jan Crawford Greenburg misrepresented a remark that Sonia Sotomayor made in a speech published in 2002, claiming that Sotomayor suggested, in Kelly's words, "that Latina judges are obviously better than white male judges."

Fox News host Megyn Kelly and ABC correspondent Jan Crawford Greenburg misrepresented a remark that Judge Sonia Sotomayor, President Obama's nominee to the Supreme Court, made in a speech delivered at the University of California, Berkeley, School of Law, claiming that she suggested, in Kelly's words, "that Latina judges are obviously better than white male judges." 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. As Media Matters for America has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence 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.

During the May 26 edition of Fox News' America's Newsroom, Kelly described Sotomayor's remarks as "reverse racism" and said it was "[l]ike she's saying that Latina judges are obviously better than white male judges." Kelly later added, "I've looked at the entire speech that she was offering to see if that was taken out of context, and I have to tell you ... it wasn't." Similarly, in a May 26 report on ABC's Good Morning America, Greenburg claimed that Sotomayor "suggest[ed] that a wise Latino may actually be a better judge than a white man, and that white men have had some attitude adjustments and reached moments of great enlightenment, but there's a long way to go."

Contrary to Kelly and Greenburg's claims, Sotomayor did not say or suggest that Latina or Latino judges are "better" than white male judges, but was instead talking specifically about "race and sex discrimination cases." From Sotomayor's speech delivered at the University of California, Berkeley, School of Law and published in 2002 in the Berkeley La Raza Law Journal:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, 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. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

From the May 26 edition of ABC's Good Morning America:

GREENBURG: Judge Sotomayor, obviously, is a highly regarded federal appeals court judge. But some of Obama's legal advisers had been concerned that she was not as collegial on that federal appeals court bench, and therefore may be less effective once she gets on the high court in building some of those coalitions with the group of eight other colleagues.

But, Diane, from the beginning, this nomination was Sonia Sotomayor's to lose. President Obama's political advisers had urged him to tap her, to make this historic pick. They calculated that it would be the savviest move for this new president, hoping to avoid a big Supreme Court fight.

Republicans will have a very difficult time opposing her as this historic pick, although there will be a lot to work with in her record, including a pretty controversial speech that she gave back in late 2001, which she suggests that a wise Latino may actually be a better judge than a white man, and that white men have had some attitude adjustments and reached moments of great enlightenment, but there's a long way to go.

DIANE SAWYER (host): All right, let's go to Jon Karl, because on that front, as we were saying, every Republican has a pen and pencil out this morning. Let's go up to Capitol Hill. Jon, what are you hearing about the first move the Republicans plan to make, and what are they saying on the Democratic side about the ease -- or not -- of confirmation?

From the May 26 edition of Fox News' America's Newsroom:

KELLY: Your thoughts on this controversial quote that she offered up on Latina judges? This was Judge Sotomayor speaking back at the University of Berkeley Law School in 2001, and I'll read you what she said and ask if you are able to put this in perspective for us.

She says, quote, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion as a judge than a white male, who has not lived that life." You know, that sounds to a lot of people like reverse racism, basically. Like she's saying that Latina judges are obviously better than white male judges, and that that's her assumption, and people get worried about putting a person like that on the U.S. Supreme Court.

REP. JOSE SERRANO [D-NY]: Right. And like I said, we're gonna hang on everything she's ever said -- if she has said them. I think the key there is, "I would hope," just like I have said at times throughout my life that when you come with this background that I came, that I would hope I would be always true to believing when I legislate in Congress -- and I've been in Congress 20 years, and in the state Assembly 16 years before that -- that I would keep in mind that while I'm legislating for the whole country, I also have to keep in mind what it is that I bring to that legislation. My personal experience and how it is to fight yourself out of poverty. All she was saying is --

KELLY: But is there a role for that on the bench? It's different, some would argue, for you, because you're an elected lawmaker.

SERRANO: Well, there is a role in that you never forget who you are. I mean, she has made decisions based on what the law is and what the Constitution says. That's what she'll be doing.

[...]

KELLY: What I want to ask you about, Tim [O'Brien], is these prior statements, because as much of a moment as we may be having now watching this and just rooting for her as a human being, there are some problematic statements that she's made in the past that are gonna come up at these confirmation hearings. And the one we've been talking about is this one where she says -- and I want to get it right: "I would hope a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male."

And I -- now I've looked at the entire speech that she was offering to see if that was taken out of context, and I have to tell you, Tim, it wasn't. In fact, she goes on -- she says, "Justice O'Connor has often been cited" -- that was our first female justice -- "has often been cited as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases."

She says, "I'm not so sure I agree with that statement." And then she goes on to say that "people from different backgrounds will come to different decisions" and she said that "one must accept the proposition that a difference will be created by the presence of women and people of color on the bench and their personal experiences." Now, is that just a statement of fact, Tim, or is that in fact controversial?

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