The Washington Times and CQ Today advanced without challenge the charge that Judge Sonia Sotomayor's reversals, which the Times reported as three of five cases, or 60 percent, are "high." But the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year since 2004.
In a May 27 article headlined "Sotomayor reversed 60% by high court," The Washington Times uncritically quoted Conservative Women for America president Wendy Wright saying that Supreme Court nominee Judge Sonia Sotomayor's Supreme Court reversals -- which the Times reported as three of five cases, or 60 percent -- were "high." Similarly, on May 26, Congressional Quarterly Today uncritically quoted (subscription required) Wendy Long, counsel to the Judicial Confirmation Network, claiming that Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." In fact, contrary to the claim that a reversal rate of 60 percent is "high," data compiled by SCOTUSblog since 2004 show that the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year.
The Times reported that "[t]hree of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents." The article then quoted Wright's assertion that Sotomayor's "high reversal rate alone could be enough for us to pause and take a good look at her record."
But according to data compiled by SCOTUSblog, Sotomayor's reported 60 percent reversal rate is lower than the overall Supreme Court reversal rate for all lower court decisions from the 2004 term through the present -- both overall and for each individual Supreme Court term. Using SCOTUSblog's data, Media Matters for America has also calculated the reversal rate for only federal appeals court decisions:
Overall Lower Court Reversal Rate
Circuit Court Reversal Rate
2008 (preliminary through April 2009)
Indeed, The Wall Street Journal reported on May 27 that, according to 2nd U.S. Circuit Court of Appeals Judge Guido Calabresi, "such reversals are typical. 'It's standard for what we do because most of the cases that go up [to the Supreme Court] are difficult,' he said."
From the May 27 Washington Times article:
Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.
"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America.
But opponents have an uphill battle.
Judge Sotomayor already has been confirmed for the federal bench twice: unanimously in 1992, when President George H.W. Bush nominated her to a district court, and by a vote of 67-29 in 1998, after President Clinton nominated her to the appeals court. Seven Republicans who voted for her in 1997 are still in the Senate, and White House press secretary Robert Gibbs said "they're certainly well positioned to support her again."
Mr. Gibbs dismissed questions about Judge Sotomayor's reversal rate, saying she wrote 380 majority opinions during her 11 years on the appeals court. Of those 380 opinions, the Supreme Court heard five of the cases and overturned her on three.
"The totality of the record is one that's more important to look at, rather than, like I said, some out-of-context or clipped way of looking at it," Mr. Gibbs said.
From the May 26 CQ Today article:
Wendy E. Long, counsel to the Judicial Confirmation Network, said Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court."
Long pointed to Sotomayor's participation in a 2nd Circuit discrimination case, Ricci v. DeStefano, in which a group of white New Haven, Conn., firefighters alleged they were unfairly denied promotions. Sotomayor joined an opinion by a three-judge 2nd Circuit panel that rejected the firefighters' lawsuit. The Supreme Court now is weighing the case.
Charmaine Yoest, the president of Americans United for Life, said Sotomayor is a "radical pick that divides America."
Obama sought the rhetorical upper hand against his conservative opponents, framing his choice as a jurist whose personal story and broad legal experience make her an ideal addition to the high court.
"Walking in the door, [Sotomayor] would bring more experience on the bench and more varied experience on the bench than anyone currently serving on the United States Supreme Court had when they were appointed," Obama said.
And to lighten the mood a bit at a momentous occasion, he called her attention to her ruling as a federal district judge in 1995 during a Major League Baseball strike.
"In a decision that reportedly took her just 15 minutes to announce - a swiftness much appreciated by baseball fans everywhere -- she issued an injunction that helped end the strike. Some say that Judge Sotomayor saved baseball," Obama said.