Media still can't find context of Sotomayor's "wise Latina" comment

In the days leading up to Judge Sonia Sotomayor's confirmation hearings, which began July 13, several media figures and outlets have repeated or uncritically reported Republican distortions of Sotomayor's "wise Latina" comments without providing the context for her remarks. As Media Matters for America has repeatedly noted, when Sotomayor made the "wise Latina" comment, she was specifically discussing the importance of judicial diversity in deciding "race and sex discrimination cases." Moreover, in criticizing or reporting criticism of Sotomayor's comments, they have also failed to report similar comments by Justices Clarence Thomas and Samuel Alito regarding the impact their backgrounds and personal experiences have had on their judicial thinking.

In her 2001 speech, delivered at the University of California-Berkeley School of Law and published in 2002 in the Berkeley La Raza Law Journal, Sotomayor stated:

In our private conversations, Judge [Miriam] 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 [Ruth Bader] 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 [Sandra Day] 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 [Benjamin] 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.

Sotomayor delivered nearly identical remarks in at least four other speeches from 1994 to 2003.

Furthermore, during his 2006 confirmation hearing, Alito asserted: "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." Similarly, 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."

Media figures and outlets advancing the distortion of Sotomayor's "wise Latina" comments include:

• On the July 13 edition of CNN Newsroom, shortly before the beginning of Sotomayor's conformation hearing, CNN's Gloria Borger stated:

BORGER: I think it is an historic moment, and I think it's pretty clear the kinds of questions that you're going to hear Republicans asking. She did make a very controversial remark in a speech that a wise Latina woman would issue a better opinion than a white male judge. I think you can be sure she's going to be asked about things like that.

Later during that program, after airing Sen. Jeff Sessions' (R-AL) opening remarks, CNN's Wolf Blitzer stated:

BLITZER: Jeff Sessions, the Republican ranking member, the top Republican on the Senate Judiciary Committee, himself a former judge, with some very, very strong words, outlining a theme that no doubt he and other Republicans will focus on during the course of the questioning of Judge Sotomayor. That, simply put, some of her comments are not appropriate for a United States Supreme Court justice. Specifically, the comment -- now widely publicized -- that she made at the University of California-Berkeley School of Law back in 2001, when she said these words: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

• On the July 13 edition of Fox News' America's Newsroom, co-host Megyn Kelly interviewed Sen. Jon Kyl (R-AZ) about Sotomayor's confirmation. She introduced the interview by stating:

KELLY: Well, one of the topics expected to come up during this week's controversial hearings is a statement made by Sotomayor back in October of 2001. Speaking at an event at the University of California at Berkeley, Sotomayor said, quote, "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."

After Kyl stated that it's "a bad thing" Sotomayor meant "that members of the court who are persons of color" will "make decisions based upon a particular agenda that they hold," Kelly asked:

KELLY: But how do you get to that, Senator, because Judge Sotomayor is not going to go before Congress today and say, "Yes, I believe that people of certain color, people of minority descent are gonna make better judges than white judges." I mean, that would be a potential deal-breaker, and I think this woman is smart enough to know that. So how are you going to satisfy yourself that that is not what she secretly believes, despite what she may tell you?

• On the July 13 edition of Fox News' Fox & Friends, correspondent Jamie Colby cited "statements she's made" such as "being a Latina woman would make her potentially a better decision-maker than a white male. Those will all come up in the hearings today."

• On the July 13 edition of NBC's Today, correspondent Natalie Morales stated:

MORALES: Senate Judiciary Republicans are promising fair but tough questions on Sotomayor's past rulings, especially cases involving discrimination and race issues. They're also set to press her to explain what she meant when she said a wise Latina woman could come to a better conclusion than a white male.

• A July 13 FoxNews.com article, which "the Associated Press contributed to," stated that the "most fertile ground for Republican questioning appears to be on race and ethnicity, focused on Sotomayor's 'wise Latina' comment and the white firefighters from New Haven, Conn., who won their Supreme Court case last month. In a speech in 2001, Sotomayor said she hoped a 'wise Latina' often would reach better conclusions than a white male without the same life experience."

• As Media Matters noted, in a July 13 Time magazine article, Jay Newton-Small and Sophia Yan wrote:

Sotomayor has used the "wise Latina" phrase repeatedly in speeches dating back to 1994. In one speech in 2001 she tagged on the line "than a white male who hasn't lived that life." Republicans, who prefer judges that claim total impartiality to the law, do not like that Sotomayor's decisions are influenced by her life experience.

• On the July 12 edition of NBC's Nightly News, correspondent Pete Williams asserted that Sotomayor will "be pressed for an explanation of her now well-known statement that 'a wise Latina woman would more often than not reach a better conclusion' as a judge 'than a white male.' "

• On the July 12 edition of CNN Newsroom, correspondent Kate Bolduan stated that "Republicans are also sure to press Sotomayor on her past statement that a wise Latina woman would reach a better conclusion than a white male." She then aired a clip of Sessions stating that Sotomayor "advocated a view that suggests that your personal experiences, even prejudices -- she uses that word -- it's expected that they would influence the decision you make, which is a blow, I think, at the very ideal of American justice."

• In a June 12 Chicago Tribune article, writers David G. Savage and James Oliphant wrote:

Given a lifetime appointment, will she be a justice who views the law through a liberal lens because of her Latina heritage?

In speeches, she said "gender and national origins ... will make a difference in our judging" and added that a "wise Latina" will "more often than not reach a better conclusion than a white male."

Or will she follow her long track record as a careful and moderate judge who sticks to the facts and the law?

• A July 12 McClatchy Newspapers article stated that critics "also zeroed in on her statement in 2001 that her 'hope' was that a 'wise Latina 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.' "

• A July 11 New York Times article stated that during her confirmation hearing, Sotomayor "may explain ... what she meant when she said that a 'wise Latina woman' might render better decisions than a white male."

From the July 13 edition of CNN Newsroom:

BLITZER: Gloria, this is real history right now. She would be only the third woman ever to serve on the United States Supreme Court, and the first Hispanic ever to serve on the U.S. Supreme Court.

BORGER: That's right, for whom English was not her first language. I was reading that in some of our research before. So I think it is an historic moment, and I think it's pretty clear the kinds of questions that you're going to hear Republicans asking. She did make a very controversial remark in a speech that a wise Latina woman would issue a better opinion than a white male judge. I think you can be sure she's going to be asked about things like that. And liberals are concerned themselves about whether she's on their side on issues like abortion and race. They're not quite sure about that.

[...]

BLITZER: Jeff Sessions, the Republican ranking member, the top Republican on the Senate Judiciary Committee, himself a former judge, with some very, very strong words, outlining a theme that no doubt he and other Republicans will focus on during the course of the questioning of Judge Sotomayor. That, simply put, some of her comments are not appropriate for a United States Supreme Court justice.

Specifically, the comment -- now widely publicized -- that she made at the University of California-Berkeley School of Law back in 2001, when she said these words: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life." Jeff Toobin, let me start with you. Were you surprised by how robust Jeff Sessions' initial comments were?

TOOBIN: I was. I thought he would wait a little bit, but this was bombs away from the get-go. And I just think what's worth thinking about here is that there is an issue before the Supreme Court now that is going to dominate these proceedings just below the radar, which is, does the Constitution allow affirmative action anymore? Does the Constitution allow a university to consider race in admissions, to allow a police department or a fire department to consider race as one factor in promotions?

That issue really separates the liberals from the conservatives on the court. Sotomayor is going to be asked about that in various ways. It was the underpinning of the case that Sessions was making. Chief Justice Roberts is making a big push on the court to create no more room for affirmative action under the Constitution, and I think that's just something to think about as we move forward.

From the July 13 edition of Fox News' America's Newsroom:

KELLY: Well, one of the topics expected to come up during this week's controversial hearings is a statement made by Sotomayor back in October of 2001. Speaking at an event at the University of California at Berkeley, Sotomayor said, quote, "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." Joining us now from Capitol Hill, Senate Judiciary member Republican Jon Kyl of Arizona. Senator, good morning to you.

KYL: Good morning, Megyn.

KELLY: So, just to start off, that was not the only time Sotomayor made that comment. She's made it repeatedly as -- by some counts as many as seven times. So, the White House is going to have a tough time seeing her live up to its statement on that comment where President Obama said she may have misspoke. Having said all that, how much hay can you make out of that, and could that potentially derail her confirmation?

KYL: It's not a matter of making hay out of it; it's a matter of finding out what she really believes. Because if she believes it, and you're right, she has said it on numerous occasions, this was not just a slip of the tongue -- and by the way it was reprinted in a law journal which she obviously edited, so she was very careful about what she said. But if she really means by that, that members of the court who are persons of color, as she puts it, will make better decisions, and will make decisions based upon a particular agenda that they hold -- and she encourages that there be more and more of those judges appointed to the court, that's a bad thing. As we all know, judges are supposed to be like umpires in a ball game, calling the balls and strikes, not changing the rules of the game. Even the American Bar Association [inaudible] --

KELLY: But how do you get to that, Senator, because Judge Sotomayor is not going to go before Congress today and say, "Yes, I believe that people of certain color, people of minority descent are gonna make better judges than white judges." I mean, that would be a potential deal-breaker, and I think this woman is smart enough to know that. So how are you going to satisfy yourself that that is not what she secretly believes, despite what she may tell you?

KYL: Well, that's the question all of America will have to decide. If we point out that she has said this over and over and over again with the same terminology, and then in her hearings she says, "No, I really didn't mean it," the question for the American people to judge is, which Judge Sotomayor do you think is going to be deciding cases once she's on the Supreme Court and is there for her lifetime and not accountable to anyone else. That's why this is so important. There is nobody to provide a check and a balance on someone once they get to be on the United States Supreme Court

KELLY: Senator, there's been a lot of talk about whether senators like yourself from Arizona, which has a high Hispanic population, will go easy on the nominee for fear of alienating Hispanic voters or Latino voters. What is your response to those who are concerned you may do that?

KYL: I'm not going to go easy or go hard. I'm just going to ask questions, as diplomatically but as firmly as I can, and I don't think in this day and age anybody here in Washington votes yes or no on a nominee based upon their gender or their ethnicity. It shouldn't be done, and frankly, it isn't done.

KELLY: Is there any chance that the Republicans attempt to vote this nominee down or attempt to garner the votes to somehow filibuster this nominee? We did see that attempt with Justice Alito. You've got the chairman of your committee, Patrick Leahy, a Democrat, who wanted to filibuster Sam Alito, not to mention President Obama, who was then a senator who wanted to filibuster Sam Alito. Any chance the Republicans, despite the numbers that are against them now in the Senate, attempt that with respect to this judge?

KYL: I don't think so. We haven't so far. Everyone is free to make their own judgment on this. We are not going to do, as you said, what President Obama and Chairman Leahy did on the Alito nomination and try to successfully conduct a filibuster. In first place, we don't have the numbers, as you pointed out. But we don't operate that way. Everybody is free to make their own decision. And I haven't decided yet; I am anxious to see what she says. I also think it's important because according to a very recent survey by the Rasmussen group, which is a very respected polling concern, the majority of Americans oppose her confirmation right now, and that includes large majorities of both women and Hispanic and Asian voters.

And, by the way, independent voters, by something like 23 or 24 points, oppose her confirmation. So, the American people are looking skeptically at her nomination I think because of all of the controversy that [chief political correspondent] Carl [Cameron] pointed out before and that you've noted just now. That's why I think she has a job to do here. It's not up to us to try to trip her up or go easy on her or anything of that sort, but rather to elicit the information that will enable the American people to judge her and those of us on the committee to make our decisions as well.

KELLY: Understood, yes. The latest Rasmussen poll, conducted July 1, says 39 percent of Americans do not favor her confirmation, 37 percent do, which was a slide for her from an earlier poll. Senator John Kyl, we'll be watching. Thanks so much for being here.

KYL: Thank you, Megyn.

From the July 13 edition of Fox News' Fox & Friends:

COLBY: But what is different about the confirmation hearings that you'll see today here on Fox than the other two that she's been through for the district court and also the appellate court is a record of some 3,000 decisions she participated in, and also statements she's made, as you've heard. Public policy considerations should be a part of decision making, she said, knowing that that isn't the general feeling among lawyers in the legal community, and also that being a Latina woman would make her potentially a better decision-maker than a white male. Those will all come up in the hearings today, definitely the empathy factor President Obama said he wants is in play when it comes to ethnicity.

From the July 13 edition of NBC's Today:

MORALES: President Obama's pick for the Supreme Court, Sonia Sotomayor, faces lawmakers this morning on Capitol Hill, as confirmation hearings get under way. Senate Judiciary Republicans are promising fair but tough questions on Sotomayor's past rulings, especially cases involving discrimination and race issues. They're also set to press her to explain what she meant when she said a wise Latina woman could come to a better conclusion than a white male.

From a July 13 FoxNews.com article, which "the Associated Press contributed to":

The most fertile ground for Republican questioning appears to be on race and ethnicity, focused on Sotomayor's "wise Latina" comment and the white firefighters from New Haven, Conn., who won their Supreme Court case last month.

In a speech in 2001, Sotomayor said she hoped a "wise Latina" often would reach better conclusions than a white male without the same life experience.

By a 5-4 vote last month, the high court agreed with the firefighters, who claimed they were denied promotions on account of their race after New Haven officials threw out test results because too few minorities did well. The court reversed a decision by Sotomayor and two other federal appeals court judges.

From the July 12 edition of CNN Newsroom:

BOLDUAN: Republicans are also sure to press Sotomayor on her past statement that a wise Latina woman would reach a better conclusion than a white male.

Senator Jeff Sessions is the senior Republican on the Senate Judiciary Committee.

SESSIONS [video clip]: She has advocated a view that suggests that your personal experiences, even prejudices -- she uses that word -- it's expected that they would influence the decision you make, which is a blow, I think, at the very ideal of American justice.

BOLDUAN: Democrats, including the committee's chair, will no doubt come quickly to Sotomayor's defense.

LEAHY [video clip]: She has the experience and the cases that show her to be a mainstream judge. Anything else is nitpicking.

From the July 12 edition of NBC's Nightly News:

WILLIAMS: But she'll be pressed for an explanation of her now well-known statement that a wise Latina woman would more often than not reach a better conclusion as a judge than a white male. Some Republicans say her record shows she's too willing to allow her own feelings to intrude, something they say that's at odds with other judges.

KYL: Who have laid out the traditional way in which you decide cases with impartiality, laying your biases and prejudices aside, and just using the law. She, of course, looks to other factors, like empathy, like whether it's popular in foreign countries, and that sort of thing.

WILLIAMS: Republicans will ask about a ruling she endorsed that said the Second Amendment's protection of the right to own a gun does not apply to the states, an issue that has divided the federal courts. And they'll ask why she joined a ruling against white firefighters in Connecticut who claimed reverse discrimination. They sued when the city threw out a promotion test that would've helped them, but not black firemen. The Supreme Court reversed that ruling just last month.

The hearing will last four days, maybe five, and the Democrats hope to have the full Senate vote on the confirmation by early August before Congress takes its summer break, Lester.  

From the June 12 Chicago Tribune article:

Judge Sonia Sotomayor will go before a Senate committee this week and be pressed to answer questions that have lingered since President Barack Obama made her his first choice for the Supreme Court.

Given a lifetime appointment, will she be a justice who views the law through a liberal lens because of her Latina heritage?

In speeches, she said "gender and national origins ... will make a difference in our judging" and added that a "wise Latina" will "more often than not reach a better conclusion than a white male."

Or will she follow her long track record as a careful and moderate judge who sticks to the facts and the law?

From the July 12 McClatchy Newspapers article:

Five other members of the 2nd U.S. Circuit Court of Appeals joined the decision, which the U.S. Supreme Court overturned late last month.

Critics also zeroed in on her statement in 2001 that her ''hope'' was that a "wise Latina 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.''

Former colleagues and court adversaries, however, said that Sotomayor is no extremist. If anything, her years as a prosecutor have made her more sympathetic to law enforcement.

From the July 11 New York Times article:

Beyond checking those boxes, though, nominees usually decline to express views on other legal issues. The protocols are looser when it comes to questions about biography, professional experience and statements made off the court.

Judge Sotomayor may choose to veer from the script in a few places. She may explain what role empathy ought to play in a judge's work, what she meant when she said that a ''wise Latina woman'' might render better decisions than a white male and what she did as a board member of the Puerto Rican Legal Defense and Education Fund for more than a decade before becoming a judge.

Republican senators have said they will press her about her role with the group. ''During her time there,'' Senator Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said in a statement, ''the organization took extreme positions on legal issues ranging from the death penalty to abortion to racial quotas.''