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Will Fox News Channel Parrot RNC Talking Points on Supreme Court Nominee Sonia Sotomayor?

Reported by Alex - May 26, 2009 -

Is Hannity a Catholic? Well, depending on your point of view an argument can be made either for or against the latter. But as sure as the “right” think the sun shines out of Ronald Reagan’s – errr – corpse, FNC will parrot RNC talking points as well as the other anti-Sotomayor memes that conservatives have been incubating for the past few weeks. Better yet, they won’t have to do any homework on them because the Republican National Committee have inadvertently released their talking points memo, meant for the Republican faithful, to the national media (those goddamned libruls!). Memes, themes, vaccinations, and possible antidotes for infected conservatives provided after the jump.

Over at The Hill’s Blog Briefing Room, staff writer Aaron Blake gives us a rundown on the official RNC talking points . What’s interesting about them is that they appear to be the proverbial Trojan horse, hiding hardcore rightwing memes within language designed to appear reasonable, non-partisan and thoughtfully questioning - while providing an opening for attack. Coincidentally (ahem), the National Republican Senatorial Committee “tweet” from this morning which came right out and labeled Sotomayor a (gasp) “liberal” has since disappeared from their Twitter history.

Here are a few examples from the RNC memo, with translations and inoculations:

Meme: Judge Sotomayor has received praise and high ratings from liberal special interest groups.

Translation: Judge Sotomayor is in the pocket of liberal special interest groups who will hold sway over her decisions.

Truth: Sotomayor has always had strong bipartisan support.
She was appointed to the District Court for the Southern District of New York by President George H.W. Bush and was praised by Judge Richard C. Wesley, a George W. Bush appointee to the Second Circuit with a conservative-leaning track record, as being "… an outstanding colleague with a keen legal mind. She brings a wealth of knowledge and hard work to all her endeavors on our court. It is both a pleasure and an honor to serve with her. "

Sotomayor has received support and praise from conservatives today and in the past. Larry Klayman, the founder of conservative groups Freedom Watch and Judicial Watch, said today on MSNBC that “President Obama's selection of New York federal appeals court Judge Sonia Sotomayor was a very prudent and wise decision from a far left liberal like Obama”. And when she was appointed to the bench by Bush 41 she was supported by such infamous far-right conservatives as Jesse Helms, Rick Santorum and Bill Frist, among others.

Truth: Sotomayor has been even-handed in her decisions regarding members of minorities and other so-called “special interest groups”, running counter to the stereotype of the liberal activist judge by adhering to the letter of the law. For example, in a case (Brissett v. Ashcroft, 2004) http://www.scotusblog.com/wp/judge-sotomayors-civil-opinions-part-iii/ involving citizenship of a Jamaican whose mother was naturalized but separated from her husband, who was not, Sotomayor deferred to the interpretation of the INS as regards the relevant statute, and affirmed a deportation order. In doing so she abided by the strict letter of the law in opposition to the earlier decision of another court which cited “the diversity of family law practices around the world”.

Another example: In writing the opinion in Center for Reproductive Law and Policy v. Bush, which found against the plaintiff’s challenge to the Mexico City Policy prohibiting foreign organizations from receiving US funds if they supported or performed abortions, she held that the government “ is free to favor the anti-abortion position over the pro-choice position” with regard to public funds.

Hardly the opinions of a knee-jerk activist liberal judge.

You can find more examples of Sotomayor’s opinions in civil cases here and here.

Meme: Judge Sotomayor has also said that policy is made on the U.S. Court of Appeals.

Translation: Judge Sotomayor is an activist judge who will legislate from the bench.

Truth: Judge Sotomayor is right! Judicial decisions at the Appeals level are about setting policy. As The Anonymous Liberal explains,

Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.

Eric Freedman, a law professor at Hofstra University, was equally dismissive of this emerging conservative talking point. "She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals... It is thoroughly uncontroversial to anyone other than a determined demagogue."
Indeed, during her 1997 confirmation hearing, Sotomayor spoke of her judicial philosophy, saying "I don't believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it." (Huffington Post)

Truth: “Sotomayor has previously pledged to follow the Constitution, and not legislate from the bench, and her career as a federal court judge suggests, as a whole, that this is the way she will administer to the law.” (Conservative Larry Klayman of Freedom Watch and Judicial Watch, today, on MSNBC )

Meme: Republicans are the minority party, but our belief that judges should interpret rather than make law is shared by a majority of Americans.

Translation: We are counting on the likelihood that you know little or nothing about law, constitutional or otherwise, so that we can convince you that Sotomayor is un-American and will try to undermine the Constitution.

Truth: See translation; see above section on judicial decisions at Appeals level.

Meme: Republicans look forward to learning more about Judge Sotomayor's legal views and to determining whether her views reflect the values of mainstream America.

Translation: We’re pretending to be reasonable and bipartisan when what we’re really going to do is try to find rulings and comments by Judge Sotomayor that we can spin to convince you that her views do not reflect the values of mainstream America. If we’re lucky, Glenn Beck might even cry.

Truth: Have you ever seen a potential Cavuto mark jump right off the page at you like that!?

Truth: Sotomayor’s record shows her to be more moderate in her thinking and practice than Samuel Alito or John Roberts.

Meme: Liberal ideology, not legal qualification, is likely to guide the president's choice of judicial nominees.

Translation: That goddamned Socialist President is out to destroy America and he’s going to stack the Supreme Court with Socialists, Communists and Fascists in order to do it. And no, it doesn’t matter that we can’t tell one from the other, because the party faithful and the suckers who donate to RW crusades can’t either.

Truth: “If confirmed for the Supreme Court, Judge Sotomayor would bring more federal judicial experience to the Supreme Court than any justice in 100 years, and more overall judicial experience than anyone confirmed for the Court in the past 70 years. She has been a big-city prosecutor and a corporate litigator, a federal trial judge on the U.S. District Court, and an appellate judge on the Second Circuit Court of Appeals. (The White House)

Quotable quote: “President Obama's choice of Judge Sonia Sotomayor is brilliant politically, but even more importantly, terrific for the Supreme Court and the future of constitutional law. - Erwin Chemerinsky, Dean and distinguished professor of Law, University of California, Irvine

Meme: Obama has said his criterion for nominating judges would be their "heart" and "empathy." Obama said he believes Supreme Court justices should understand the Court's role "to protect people who may be vulnerable in the political process." Obama has declared: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old-and that's the criterion by which I'll be selecting my judges."

Translation: Obama is a girly-man looking for a hippie tree-hugger for Supreme Court Justice, and will have us all singing “Kumbayah” at the investiture. His real agenda is to wrench control of Amurrica from the White Male Christians to whom it rightfully belongs and give it to disabled, Muslim, LGBT illegal immigrants.

Truth: The fact that Sotomayor has vowed to uphold the Constitution and has walked her talk throughout her legal career is in no way inconsistent with President Obama's desire to appoint someone who has the practical, down-to-earth experience to understand how court decisions affect real people in heir daily lives.

Far-right conservatives will be hanging on to this statement by Judge Sotomayor for dear life:

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.

Charles Krauthammer has already appeared on Fox, bitching that “Sotomayor’s concerns for certain ethnicities overrides justice” and that Republicans should oppose her nomination on principle although her confirmation is certain.

This suggestion that Sotomayor is racist is most likely to be the hardest meme of all to shake; indeed, the blogosphere is heavily polluted with it already. One of the best responses to that charge that I have seen so far is this:

She offers [her remark about being a wise Latina woman] as a counterpoint to the claim that "a wise old man and wise old woman will reach the same conclusion in deciding cases." And then she cites specific, historical examples - Holmes' and Cardozo's votes upholding gender and racial discrimination, the Supreme Court's jurisprudence on gender discrimination prior to 1972 - where modern thinking would consider these decisions "wrong," and where a minority female Justice may well have made the "right" decision.

Another way to look at what Sotomayor said is in the context of the remarks which precede it:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.

Meme: Justice Souter's retirement could move the Court to the left and provide a critical fifth vote for: Further eroding the rights of the unborn and property owners; imposing a federal constitutional right to same-sex marriage; stripping "under God" out of the Pledge of Allegiance and completely secularizing the public square; abolishing the death penalty; judicial micromanagement of the government's war powers.

Translation: Be Afraid!!! Be Very Afraid!!! They’ll rip the fetus from your womb and then hit you with a death tax!!! They’ll confiscate your property to build a Gay Las Vegas, and let murderers run riot in the streets! They’ll... Awwww, jeeez, Glenn, not again!

Truth: Sotomayor has a solid reputation as a moderate on the Court. According to The White House,

Sotomayor often forges consensus and agreeing with her more conservative nominees far more frequently than she disagrees with them. In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time

Truth: Sotomayor is no further left than Justice Souter, whom she is replacing, and is unlikely to disturb the present balance of the Supreme Court. The “coulds” provided by the RNC are nothing more than scare tactics. The real “problem” is that Obama isn’t going to nominate a conservative. Boo fricking hoo.

Oh, and by the way, is anyone aware of a move to add an amendment to the Constitution forcing the states to legalize gay marriage? Last time I looked the only demand was the one by the radical right to add an amendment to interfere with states’ rights by imposing a federalban on gay marriage! Oh yeah - IOKIYAR.

One thing I noticed was glaringly absent from the RNC talking points was any red meat for the “religious “right”. Surely there must be some way to cast aspersions on the faith of the Roman Catholic Sotomayor - without overtly indulging in the anti-Catholic bias which permeates so many of the ranks of the Jesus Army?

Oh, look! Just in the nick of time, it's Glenn Beck, Jesus Warrior, with a "question":

beck: can the messiah heal sotomayor?