In a report that aired repeatedly on CNN on May 27, senior congressional correspondent Dana Bash repeated conservatives' criticism of remarks Supreme Court nominee Judge Sonia Sotomayor made in 2001 and 2005, but did not provide the context for those remarks. Bash reported former House Speaker Newt Gingrich's (R-GA) assertion that “White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw,” which she said was a “reference” to Sotomayor's September 2001 comment that “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.” Bash also aired remarks by Judicial Confirmation Network executive director Gary Marx, who said Sotomayor's statement is “concerning.” In fact, contrary to the suggestion that Sotomayor was commenting on the general judicial ability of Latinas and white men, the context of her remarks demonstrate that Sotomayor was specifically talking about “race and sex discrimination cases.”

Bash also aired an excerpt of a Web ad by the Judicial Confirmation Network that, in Bash's words, includes Sotomayor's “instantly familiar quote about making policy from the bench.” However, Bash did not provide the context for those remarks, which Sotomayor made during a 2005 Duke University Law School forum, showing that Sotomayor was not advocating “making policy from the bench,” but was responding to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship.

Indeed, as Media Matters for America has documented, numerous legal experts have stated that Sotomayor's statement that the “court of appeals is where policy is made” was “the absolute judicial equivalent of saying the sun rises each morning” and “thoroughly uncontroversial to anyone other than a determined demagogue,” as Hofstra University law professor Eric Freedman put it. Indeed, the Oxford Companion to the Supreme Court of the United States (2005) notes that federal appellate courts do, in fact, have a “policy making” role.

On May 27, Bash's report aired twice on The Situation Room and once on Lou Dobbs Tonight.

From the May 27 edition of CNN's The Situation Room:

WOLF BLITZER (host): All right, this just coming in to The Situation Room.

Only a few moments ago, the top members of the Senate Judiciary Committee released the questionnaire they've asked the Supreme Court nominee, Sonia Sotomayor, to complete. It's mostly pretty standard stuff, but it does signal the confirmation process is now moving into higher gear.

Sotomayor called the ranking members of the committee today, as well as the full Senate's top Democrat and Republican.

Let's go to our senior congressional correspondent, Dana Bash.

Dana, Republicans, I take it, pretty much holding their fire right now -- at least the Republicans in the United States Senate.

BASH: They are. And you talk to Republicans here, and they fully admit that is intentionally their political strategy to do that right now.

But I also talked to one Republican aide involved in this today, Wolf, and he said, point-blank, just because Senate Republicans aren't coming out of the gate with their hair on fire, it doesn't mean they're going to roll over.

[begin video clip]

BASH: Behind these doors, the formal opposition has begun. Some one dozen Republican Senate lawyers are now combing through Sonia Sotomayor's dense legal record, starting with 3,625 published opinions from her 17 years as a federal judge.

SEN. JEFF SESSIONS (R-AL): There are some troubling things that are going to going to have to be inquired into for us to do our job.

BASH: Still, the lead Republican on the Senate Judiciary Committee does not think they'll try to block her nomination.

SESSIONS: I don't sense a filibuster in the works.

BASH: That's not stopping conservative activists from trying to stir up public opinion against Sotomayor, releasing this new Web video with her instantly familiar quote about making policy from the bench.

[begin video clip]

NARRATOR: So, what is she saying?

SOTOMAYOR: Court of appeals is where policy is made. And I know -- and I know this is on tape, and I should never say that.

NARRATOR: Equal justice under law or under attack? America deserves better.

[end video clip]

BASH: One prominent conservative moved beyond attacking Sotomayor as a judicial activist and flat-out called her a racist.

Newt Gingrich said on Twitter: “White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw.”

That's a reference to Sotomayor's now widely distributed 2002 Berkeley La Raza Law Review article, suggesting her Latina roots impact her judicial 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.”

No senators and few other conservative activists have gone as far as Gingrich, but many are trying to make the same point more subtly.

MARX: What I see from her comments about a female nominee and a woman of Hispanic descent being better positioned to make statements and considerations on cases is concerning. It's outside of qualifications that anyone controls.

[end video clip]

BASH: And despite that line of attack, some Republicans here in the Senate say they are wary of the optics of Sotomayor's hearings. One, a Republican aide, said that they are cognizant inside the Republican Caucus that they're going to have, quote, “seven white guys” on the GOP side questioning a Latina judge -- Wolf.

BLITZER: Very sensitive stuff, obviously. Thank you, Dana.