News Leader

Slate's Dahlia Lithwick had a very interesting column this weekend cautioning her fellow liberals against smearing Justice Clarence Thomas as they mount their defense of Judge Sonia Sotomayor:

The temptation to smack back and argue that we deserve to seat Sotomayor because Thomas was a lousy affirmative-action pick who turned into a third-rate justice is hard to resist. But it's flat wrong. Liberals achieve nothing by suggesting that Thomas' elevation to the high court was preposterous on its face or that his tenure there has been a disgrace....

Claims that Thomas is too stupid to ask questions and in constant peril of embarrassing himself at the court are just not that different than claims that Sotomayor is mediocre. Nobody who has followed Thomas' 18-year career at the Supreme Court believes him to be a dunce or a Scalia clone. Whether you accept Jan Crawford Greenburg's claim that Thomas' constitutional theories are so forceful that they have shaped Scalia's or you believe the more common view that Thomas has a deeply reasoned and consistent judicial philosophy that differs dramatically from those of the court's other conservatives, accusations that he's been a dim bulb are just false. They also reveal that the name-calling that originates now, during the confirmation process, engenders a mythology that can never be erased.

It's nice to see Lithwick make this point (even if she has done a little name-calling of her own). Whether you agree with his opinions or not, Thomas has quite obviously proven himself on the Court. Yet the ridiculous idea that he's less capable than his fellow justices still persists, even among people that ought to know better.

Last Wednesday, Keith Olbermann falsely compared statements Samuel Alito made during his 2006 Supreme Court confirmation hearings to the now controversial and seemingly racist remark Sonia Sotomayor uttered during a 2001 speech.

In her lecture to the Boalt School of Law at the University of California, Berkeley, Barack Obama's nominee to replace retiring Supreme Court Justice David Souter said, "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."

By contrast, Alito in 2006 talked about his background indeed impacting his decisions, but never said that would make him "more often than not reach a better conclusion than" women of a different race.

Olbermann, as he so often does with his agenda-driven drivel, missed this obvious distinction (video embedded below the fold with partial transcript):

KEITH OLBERMANN, HOST: Good evening from New York.

"When a case comes before me involving, let??s say, someone who is an immigrant," said the nominee for the Supreme Court, "I can??t help but think of my own ancestors because it wasn??t that long ago when they were in that position. I have to say to myself and I do say to myself, you know, this could be your grandfather. This could be your grandmother."

"When I get a case about discrimination," the nominee continued, "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."

Our fifth story on the COUNTDOWN: The smoking gun, the damming confirmation of reverse racism and reverse sexism from Judge Sonia Sotomayor? No, those quotes were from then-Supreme Court nominee, conservative judge, Samuel Alito, during his confirmation hearing in January 2006 when he was answering a question from Republican Senator Coburn.

So conservatives predicating their attempt at character-assassination of Judge Sotomayor on those exact points? You can collect your backsides from the coat check after the show because they??ve been handed to you.

Actually, no, because the issue here is NOT a jurist using his or her background and experiences to make legal judgements. The problem with Sotomayor's statement in 2001 was that she claimed someone with her background "would more often than not reach a better conclusion than a white male who hasn't lived that life."

Let's view her comments in their complete context (full lecture available here) :

In our private conversations, Judge 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 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 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 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.

As such, Sotomayor was making the case that her experience and background as a Latina woman somehow makes her more qualified than white men to reach proper judicial decisions in certain cases.

As you can see from the following video and partial transcript of this 2006 exchange with Sen. Tom Coburn (R-Ok.), Alito only talked about his background and how it impacts his decisions on the bench, but NEVER suggested that would make him more qualified than a non-white woman without the same experiences:

SENATOR TOM COBURN, (R-OK): You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent.

Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

SAMUEL ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

SAMUEL ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant - and we get an awful lot of immigration cases and naturalization cases - I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. 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. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing - the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

COBURN: Thank you.

See anywhere in Alito's statement when he claimed his background and experience make him more qualified than anybody of differing background, gender, or race?

No, I don't either.

In the end, it seems possible that Olbermann and his crew once again channeled a member of the Netroots without doing any fact-checking, for from what I can tell, Salon's Glenn Greenwald was the first to uncover and publish Alito's comments as a "smoking gun" about five and a half hours before Wednesday's "Countdown" aired.

As NewsBusters has recommended in the past, it would be wonderful if a so-called news outlet like MSNBC might actually check the veracity of Netroots blog postings BEFORE echoing them.

Or, would that be too much like journalism?

On Friday's Special Report with Bret Baier, FNC host Baier informed viewers that the Justice Department had dropped charges against New Black Panther members who engaged in blatant voter intimidation in Philadelphia last November. As previously documented by Newsbuster Noel Sheppard, last November Fox News ran a report by Rick Leventhal detailing the activity which was ignored by the mainstream media. On Friday's Special Report, Baier quoted a former 1960s civil rights lawyer: "The most blatant form of voter intimidation. They were positioned in a location that forced every voter to pass in close proximity to them. The weapon was openly displayed and brandished in plain sight of voters."

Below is a transcript of the report from the Friday, May 29, Special Report with Bret Baier on FNC, which aired during the show's "Political Grapevine" segment:

BRET BAIER: A lawsuit brought by the Bush administrationNew Black Panther Party has been dropped by the Obama Justice Department. The move comes despite an eye witness account of a You Tube video of the men seemingly attempting to scare away would-be voters on Election Day, an apparent violation of the 1965 Voting Rights Act. The civil complaint accused the men of coercion, making threats, intimidation, and hurling racial slurs while at a Philadelphia polling station on November 4. Prosecutors say one of the men brandished a night stick, which they called a deadly weapon.

A former 1960's civil rights lawyer said in an affidavit that it was, quote, "The most blatant form of voter intimidation. They were positioned in a location that forced every voter to pass in close proximity to them. The weapon was openly displayed and brandished in plain sight of voters." A Justice Department spokesman said officials obtained "an injunction that prohibits the defendant, who brandished the weapon, from doing so again. Claims were dismissed from the other defendants based on a careful assessment of the facts and the law."

CQ Politics notes a new Gallup survey found that only 11% of Republicans are Hispanics or blacks or members of other races. That compares with 36% of Democrats who are non-white and 27% of independents.