Media Matters: NYT, Fox and MSNBC Delete Sotomayor Comment Regarding Her "Socio-Economically Poor Background"

Recently, the New York Times produced video footage of a panel discussion during which Supreme Court nominee Sonia Sotomayor stated that her standardized test scores (not grades) were below the average of persons at Princeton and Yale Law School. Although she ultimately graduated from the top of her class at Princeton and performed excellently at Yale Law School (which does not "rank" students), conservatives who oppose affirmative action have used these comments in order to depict Sotomayor as an undeserving beneficiary of race-based admissions policies.

There is one glaring problem with their analysis, however: The edited video footage deletes Sotomayor's statement that she "is from what is traditionally described as a socio-economically poor background," which leaves the impression that Princeton and Yale only considered "race" as an affirmative action category. Media Matters uncovered the misleading reports (on Fox, MSNBC and in the NYT).

Many studies show that academic performance in college and graduate or professional school correlates more strongly with prior GPA than with standardized tests. Furthermore, it is well known that expensive test preparation courses, which benefit the wealthy, can add significantly to a test-taker's performance. It is unclear whether Sotomayor enrolled in professional test preparation courses, but it is unlikely that she did.

Also, Sotomayor's gender probably played a tremendous factor in her admission to college and law school, but most conservatives have reserved their anger for race-based affirmative action. Undoubtedly, graduating summa cum laude from Princeton, one of the highest ranked universities in the world, strongly influenced the Yale Law School admissions committee (as it should have). This remarkable achievement, however, receives little attention from individuals who seek to blame affirmative action for their own irrational refusal to appreciate her intellectual power (and the achievements of other persons of color).

Although conservatives argue that affirmative action "stigmatizes" persons of color as inferior, this racial stereotype predated affirmative action by centuries, and it clearly remains a part of American culture. This stereotype operates so powerfully among those who accept it, that even the top graduate from one of the world's top colleges and law schools cannot escape it. Blaming affirmative action for this patent bigotry is an act of cowardice.

Ironically, conservatives have chosen to deemphasize Sotomayor's poverty even though they often advocate affirmative action on the basis of "class," rather than race. I have always doubted the sincerity of the class-based "alternative" (often, affirmative action is based on race and class), given conservative opposition to antipoverty programs -- which often portrays beneficiaries as lazy persons of color. Nevertheless, if the class argument comes from an honest place, then conservatives should point to Sotomayor's academic and professional success as vindicating -- rather than delegitimizing -- societal efforts to extend opportunities to poor and disadvantaged individuals. Instead, they have chosen to downplay or question her obvious success and to vilify an individual who succeeded despite her severe disadvantages. This approach is politically suicidal -- not to mention deceitful and hypocritical.

Judge Guido Calabresi, Superstar Legal Scholar, Gives Sotomayor Strong Endorsement

Guido Calabresi has done it all. He is a great legal scholar. He was the Dean of Yale Law School, where he continues to teach. He is a judge on the Second Circuit Court of Appeals, but if the Democrats had won more presidential elections in the last forty years, he probably would have become a Supreme Court justice. And, as the New York Times reports, Calabresi is quite fond of Sonia Sotomayor.

Calabresi was the Dean during my days at Yale Law School, and I, like most people, found him fair-minded and very open on issues. In fact, I first met Calabresi while I was deciding among law schools, and I passionately "shared" my thoughts with him regarding what I viewed were the law school's shortcomings. He was engaging and thoughtful, even though in hindsight I conclude that I might have exhibited too much chutzpah.

Calabresi continues to approach issues with openness, and he has offered his powerful voice in support of Sotomayor. Calabresi has responded to claims that Sotomayor has a "temperament" issue. Several commentators have raised that matter, citing the notorious Almanac of the Federal Judiciary. But as Calabresi argues (and as I examined in a prior blog post), the reality of sexism (and racism) likely impact the way in which many lawyers evaluate Sotomayor's tough style during oral arguments.

Assertiveness in women -- especially women of color -- is perceived as inappropriate. In men, however, toughness proves that they are strong and capable. The Almanac of the Federal Judiciary primarily describes Sotomayor's assertive questioning as a negative, but with respect to Justice Scalia, whom many people view as exceedingly difficult during oral arguments, the book depicts his toughness in very positive terms.

Perhaps Calabresi's statements can help lay the "temperament" issue to rest. Calabresi says that he monitored Sotomayor during oral arguments and found that her style was not out of line with her male colleagues.

Calabresi believes that sexism explains the negative reviews of her questioning style. According to Calabresi: "Some lawyers just don’t like to be questioned by a woman. . . It was sexist, plain and simple." Calabresi's comments confirm the results of empirical data regarding male attorneys' evaluation of female judges. Calabresi also says that he viewed Sotomayor's toughness as a positive quality and that her rigorous questioning persuaded him shift his positions several times in the past.

Other esteemed judges and law professors offer support for Sotomayor in the article, including Professor Laurence Tribe, Judge John O. Newman, and Judge Richard Wesley. Several lawyers also say that her toughness shows that she takes cases very seriously and that she wants to resolve important issues. I concur.

Update: I neglected to mention that the title of the New York Times article described Sotomayor as having a "sharp tongue," which is sexist language. The authors have changed the title to describe her as having a "blunt style." It is amazing when people casually use language that proves the point they are questioning.

Related Reading on Dissenting Justice: Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Fearing Political Consequences GOP Might Back Down From Sotomayor Fight

I would rather see the country have more political parties than fewer. Accordingly, I am pleased to discover that cooler heads might prevail regarding the Republican opposition to Sotomayor. Conservatives and even so-called liberal commentators have employed some interesting tropes to describe Sotomayor. Specifically, they have labeled her a racist, extremist, and intellectual lightweight.

The irony is too much to bear. Some people in a political party that barely contains any nonwhite members believe they can win a public relations battle describing a Latina as a racist. Mike Huckabee, who last year insisted that the nation amend the Constitution to reflect "God's standards," believes appointing "Maria" Sotomayor would lead to an "Extreme Court." And people with far fewer accomplishments (and much longer lives) have dismissed the summa cum laude Princeton graduate and Yale Law School alumna as an intellectual lightweight. The whole mess was an avalanche of hypocrisy.

As Professor Nan Hunter reports, many conservatives previously opposed her nomination to the court of appeals on the sole ground that it would enhance the likelihood that she would later move to the Supreme Court. Thus, Republicans have always opposed her for nonsubstantive reasons. The pattern has continued. But, as the Politico reports, it might soon come to an end.