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WHEN PUNDITS (FAIL TO) STATE FACTS! George Stephanopoulos spent his day correcting his panel’s failed facts: // link // print // previous // next //
TUESDAY, JUNE 2, 2009

Know-nothing speaks: We’re getting ahead of ourselves just a tad. But does anyone think that Richard Cohen knows what he’s talking about?

COHEN (6/2/09): I do not agree with Sotomayor on the New Haven affirmative-action cases and have written a column saying why. But if it can be said she sided with minorities over white men, recognize that two of the New Haven firefighters unjustly affected on the basis of race are Hispanic. But I agree with what Sotomayor meant when she said in her famous 2001 speech, "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." Yes, in some cases. That is the virtue of diversity. You're instructed by your own life.

With the power invested in pundits, Cohen knows what Sotomayor meant in her now-famous 32 words. But does anyone think he knows what he’s talking about when he opines about her decision in the New Haven case?

In his earlier column (click here), it’s clear he thinks that Frank Ricci got a raw deal. But that doesn’t necessarily mean that Sotomayor (and her fellow panelists) judged the case wrong. Is there any reason to think that Cohen knows a durned thing about the state of the law in this contentious, crabbed area?

The law can sometimes be an ass—and the law in this case seems rather complex. Does any sane person think that Cohen has any idea what he’s talking about? In our system, big pundits rarely so burden themselves. Keep reading to see how a panel of pundits performed on Sunday’s This Week.

Special report: Broken trail!

Part 2—When pundits (fail to) state facts: Let’s give him some credit: At least Jeff Sessions knew how to state the Standard Complaint against Sonio Sotomayor. Was Sessions troubled by those 32 words, David Gregory asked on Meet the Press—by Sotomayor’s now-famous statement? Yes, he was troubled, Sessions replied. Explaining, the solon said this:

SESSIONS (5/31/09): The entire concept of the American rule of law is blindfolded justice, that the judge sets aside their personal and political and biases of any kind and gives an objective ruling on the law and on the facts...The marvelous moral authority of the law can be undermined if people think that the decision's being made by, on the basis of, a judge's personal views or biases or background.

Is Sotomayor willing to set aside her personal biases and background? Is she willing to give an objective ruling? The question can best be answered by analysis of the judge’s rulings.

But Sotomayor had spoken to this very issue in the now-famous, eight-year-old speech which caused such a major tizzy last week. This is what she said in that speech, describing the way she proceeds on the bench—every day, she said:

SOTOMAYOR (2001): I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that, to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.

“I owe [people] constant and complete vigilance in checking my presumptions and perspectives,” Sotomayor said. But wouldn’t you know it? Gregory didn’t find that highly relevant passage when he put her 32 words “in wider context” (see THE DAILY HOWLER, 6/1/09). But then, we haven’t seen any big scribe cite that relevant statement.

Let’s be frank. So it goes when our dumbest elite attempts to perform its duties.

No, our millionaire scribes aren’t especially skilled at putting things “in wider context.” But then, this hapless elite isn’t very good at even the simplest tasks. Consider what happened to George Stephanopoulos on Sunday’s This Week, when a panel of hapless pundits kept bungling the most basic facts.

Poor George! Ed Gillespie was one of his guests—and he quickly bungled a simple fact. Granted, Gillespie is more pol than pundit; he’s former chair of the RNC. But wouldn’t you know it? The first time Gillespie opened his mouth, he attempted to state a fact. As often happens on Sunday panels, his “fact” was just flat wrong:

GILLESPIE (5/31/09): Look, we can all as Americans be proud that the first African American president just nominated the first Latina to the Supreme Court of the United States. But we need to ask the, the tough questions. And frankly, I don't think those questions are so much revolving around race or gender as how did, how did it end up that seven of your cases that went to the Supreme Court, six of them were overturned? That's a legitimate question to ask.

That would be a legitimate question, although its significance would be meager. But Gillespie’s “fact” was just flat wrong. His host had to clean matters up:

STEPHANOPOULOS (continuing directly): Actually, that's three out of six. But that’s not that exceptional, is it, for cases going to the Supreme Court? [Answer: No.]

Stephanopoulos knew this bone-simple fact. But then, George would spend a lot of time this day helping his panelists with their facts. Moments later, George Will tried to state (or imply) a fact. The host had to help him too:

WILL: In the New Haven fireman case, however, the accusation is not just that she came to a perverse conclusion, or affirmed a perverse conclusion...The accusation goes beyond that, which is that the three-judge panel on the Second Circuit, that in a most perfunctory, cursory, indeed unsigned way affirmed the lower court's judgment, did so in a perverse way that seemed to be trying to slip one by a majority of the Second Circuit.

STEPHANOPOULOS: It's interesting that, that that SCOTUSblog—Tom Goldstein has also looked at that question and says it's not that exceptional in these kinds of cases. I think he says 24 out of 28 times there have been unsigned opinions.

All week long, pundits had been saying (and implying) that there was something “unusual” about that perfunctory, cursory, unsigned opinion (more tomorrow). By Friday afternoon, Goldstein had developed and posted some facts—facts which seemed to say something different. But so what! Will went ahead with the standard suggestion. Once again, it was left to Stephanopoulos to insert the relevant facts.

Let’s be candid. If a host wants facts on his Sunday show, he’ll likely have to provide them. At one point, Jan Crawford Greenburg rambled ahead, killing time in largely incoherent fashion. Once again, Stephanopoulos had to insert some relevant facts—facts he’d likely learned that day, from reading his “Week in Review:”

GREENBURG: Well, the problem though I think for Judge Sotomayor—and obviously we've seen this week in Justice Alito's confirmation hearings, when he talked about how his life experience as being the son of Italian immigrants affect his thinking when he's taking up immigration cases or discrimination cases. But with Judge Sotomayor in that speech, she also said a line before we got to the now-famous line—and you played this clip from Justice O'Connor, when Justice O'Connor is saying that I think a wise old man and wise woman judge will reach the same result. In that speech, Judge Sotomayor says, I don't think I agree with Justice O'Connor on that. So, she's really going beyond life experiences.

STEPHANOPOULOS: But I actually think that's less controversial than the sentence that's gotten the attention. I mean, had Judge Sotomayor said reached a different conclusion than a white male, it probably wouldn't have been a problem. But Ed Gillespie, let me bring you in on this, a lot of studies have shown that who you are does change. When you have more women on a panel, that does tend to change how, how panels of judges deal with discrimination cases.

To this day, we’re not entirely sure what Greenburg meant in this rambling statement—why the observation she cites would count as “a “problem” for Sotomayor. But once again, it was left to Stephanopoulos to insert some relevant facts. Studies suggest that men and women judges don’t rule the same way in discrimination cases, he noted. Those studies suggest that Sotomayor might have been more right than O’Connor on this empirical question. (Though you’re right: None of this was especially relevant to the charges at hand.)

At any rate, we begin to see the pitiful way this program proceeded on Sunday. Again and again, it was left to the host to introduce facts into the hapless conversation being formed by his guests. By Sunday, a range of highly relevant facts had emerged, largely on the web, concerning the charges against Sotomayor. Again and again, it seemed Stephanopoulos knew these facts—but his dull-witted guests did not.

Let’s summarize a few basic facts—facts which had emerged on the web long before Sunday’s broadcast. Any journalist should have known these facts before appearing on Sunday’s program:

First fact: Sotomayor has had six cases reviewed by the Court. With the New Haven case still pending, she has had three reversals. (This is a fairly typical Supreme Court reversal rate.)

Second fact, from the highly authoritative SCOTUSblog, where people actually check facts and develop information: In cases resembling the Ricci case, Sotomayor’s second circuit offered an unsigned order 24 out of 28 times.

Third fact, also from SCOTUSblog, where this material was posted last Friday: “Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals...Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.” The site’s Tom Goldstein had voiced his opinion: “Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decision-making.”

Let’s state the obvious: That third set of facts is highly relevant to the prevailing charge against Sotomayor. But viewers of this panel discussion never heard that set of facts cited. Luckily, they heard a reference to those facts if they watched the entire program. In Stephanopoulos’ earlier segment with two senators, these highly relevant data had been cited—by Stephanopoulos, of course:

STEPHANOPOULOS: Let me bring that to Senator Cornyn, because if you look at—you talk about looking at her entire record. If you look not only at that case, but the judge's entire record in race-related cases, this has been done by SCOTUS, a blog, Tom Goldstein, a Supreme Court scholar and lawyer—and he shows that in, she's ruled in about 100 race-related cases, and rejected claims of discrimination and bias 80 percent of the time. Doesn't that show that she is not bringing personal feelings to bear in an improper way?

Let’s tell it straight about Sunday’s This Week. If it weren’t for the facts the host somehow knew, there would have been few facts at all.

During the panel, one guest did perform fairly well. That was panelist Krugman, who only got to make two short comments about the Sotomayor matter. As for the other four panelists? It often seemed Stephanopoulos was staging a pageant starring the four dullest kids in the school. They offered wandering, incoherent narratives—narratives featuring rather vague claims. They offered very few facts—and such facts as they offered were wrong.

Somehow, Stephanopoulos knew basic facts. Greenburg, Will and Ifill seemed remarkably free of such baggage.

But then, this upper-end, celebrity press corps has long constituted our dumbest elite. They often seem like they have been picked from the dullest kids in the whole school system. On Sunday, big pundits displayed little skill when they tried to provide “wider context.” And they seemed to know amazingly few basic facts.

But then, how dull was the mainstream press corps last week? They were very dull indeed. Just consider the much-bleated claim about Sotomayor’s “unusual” order.

Tomorrow—part 3: We’ll start with Krauthammer. Who else?

Our dullest elite’s fact-free discourse: The modern pundit will always avoid citing relevant facts. There’s a very good reason for this act of avoidance: He or she has usually avoided learning such facts.

As an example of this cultural preference, here’s what happened when Stephanopoulos asked Greenburg, a legal journalist, about Sotomayor’s judicial record. “Jan, you studied her opinions,” he rather foolishly said:

STEPHANOPOULOS: Jan, you studied her opinions. What does, if you look broadly at her, at her record, her judicial record, you know, you saw going into this, a lot of liberals were hoping the president was going to appoint a firebrand. He was sending signals to both sides. You heard Senator Schumer say he believes she's got a moderate record.

GREENBURG: Well, they're pretty—you know, she's an appeals court judge, an experienced judge. They're pretty technical, a lot of them. You know, you don't get a lot of those hot-button issues on that New York-based federal appeals court, those social issues that you see kind of out in the heartland. So you know, there's not a lot there for Republicans at this point to work with. We've seen a lot of discussion about a case that's now before the Supreme Court that she was involved in, involving these white firefighters from—

STEPHANOPOULOS: The New Haven case we just talked about.

GREENBURG: —New Haven. And so, you know, I think that one's going to be, obviously, pretty controversial. But her opinion in that—her opinions that we've seen so far, there's not a lot in them that we saw from some of the other potential contenders.

That was extremely thin gruel. How hard had Greenburg “studied?”

Obvious background: All week long, the discussion had turned on charges about the way Sotomayor would handle issues of race, ethnicity, gender. At SCOTUSblog, Goldstein had developed some relevant data about her past work in this area. Greenburg never cited those facts. (Nor did she have much else to say about the judge’s record.) But then, people who watched this roundtable segment never heard Goldstein’s data at all. In large part, they didn’t hear about those data because of Greenburg’s know-little answer.

Earlier, Krugman had seemed to mention the data. (You can safely assume that he’d seen them.) At some point in this panel discussion, they should have been cited in full:

KRUGMAN: Yeah, you know, what amazes me about all this is that this is was a speech. Right? The famous [32-word] line comes from a speech where she was trying to be entertaining. And, you know, have I, I always think about this, have I somewhere along the line said something like I would like to think that bright Jewish kids from suburban New York make the best economists? I probably have somewhere along the line. It doesn't mean anything, right? She's trying to make a little bit of who she is.

STEPHANOPOULOS: Well you're not going to have to worry about the Supreme Court now, Paul.

KRUGMAN: But the judicial record shows nothing of this. The judicial record shows a straight, mainstream careful judge. And this is just crazy to be making so much out of this line.

At this point, Stephanopoulos turned to Greenburg—and he got the fact-free ramble we have presented above.

Was Sotomayor “trying to be entertaining” with her now-famous 32 words? We have no idea; we’re sorry Krugman used so much of his (very valuable) time with this speculation. But viewers deserved to hear about Goldstein’s data, data taken from Sotomayor’s “judicial record.” Krugman introduced the topic. As usual, that’s right where it died.

Gack. So it goes when our dullest elite pretends to stage Sunday discussions. From there, it’s on to the watering-holes, where the fine gossip begins.