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Setting the Record Straight on Sotomayor YouTube Video

Morgen on May 28, 2009 at 8:12 pm

For the past 3 days now White House Press Secretary Robert Gibbs, when questioned by the press about the video of Judge Sotomayor that we first posted on YouTube, has steadfastly advanced the claim that the video clip is “out of context”. And that it was somehow disingenuous of us to not have posted a longer or more complete clip. By saying that the clip is “out of context”, Gibbs is suggesting of course that we have misled viewers and that the real meaning of what Judge Sotomayor had to say in the clip can only be ascertained by viewing a longer segment of the video. I’d like to go on record and say that I think the only one who is being disingenuous here is Mr. Gibbs, and I believe the underlying facts will clearly demonstrate this to be the case.

First, before even dealing with the contents of the YouTube clip, it’s important to note that a link to this blog was included at the end of the clip and also in the description field for the video. For anyone who cared to look (and thousands did), they would have easily found our blog post from May 3 which discussed the clip. Not only did our post include additional information setting up the clip, but it also included a link to the video of the entire session at Duke Law school. 

Now for the benefit of Mr. Gibbs, and our readers, here is the full transcript of the audio from the YouTube clip:

Um, all of the legal defense funds out there…they’re looking for people with Court of Appeals experience. Because it is…Court of Appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law. [Laughs] I know. I know. [Laughter] I’m not promoting it, I’m not advocating it, I’m…you know [Laughter].”

And for posterity, here is a link to a longer clip on YouTube that has been actively promoted by many of Sotomayor’s defenders as providing more “context”.

Now here’s the key question…and I defy anyone to answer it in an intellectually honest way:

How exactly does listening to any longer portion of what Judge Sotomayor said change the underlying (or even intended) meaning of her words?

Mr. Gibbs and others would have you believe that by better understanding the question she was responding to – about the different types of judicial clerkships – that this would somehow put into different context the meaning of her statement about the Court of Appeals. How so, exactly?

I actually made a concerted effort to ensure that there was enough context to understand what she was referring to when she said the “Court of Appeals is where policy is made”. Judge Sotomayor herself, the other panel members, and the law students in attendance certainly understood what she had said. And rather than clarify her own words, if she had in fact misspoke, Sotomayor chose to joke about the fact that judges “don’t make law” (wink-wink)…a joke which was easily understood and appreciated by everyone in the room.

Now here is where the White House is being totally disingenuous about this. The most substantive and credible defense of Sotomayor’s statement is that she was stating a generally agreed-upon fact within the legal profession that Appeals courts in effect play a policy role by establishing legal precedent. In fact our “friends” over at The Volokh Conspiracy jumped in with this line of defense almost immediately after we originally posted the video.

So why isn’t the White House pushing this line of argument? For one simple reason. While it may be acknowledged within the majority of the legal profession that higher Courts provide a legitimate policy and law-making role, this is decidedly NOT a view held by the majority of the American public. Quite the opposite, and in fact most members of Congress are uncomfortable with this concept as well. Or at least they pretend to be when it suits their interests, as evidenced by my video from earlier today of Senator Schumer expressing his own contempt for judicial activism.

Which brings us full circle, back to the contents of the Sotomayor video. Her statement, and the proceeding joke about “not” making law, was nothing if not a secret handshake amongst a group of insiders that share agreement over a normally unspoken truth. There is no other reasonable explanation.

I say that this is a discussion and debate which has been kept behind closed doors for too long. Apparently the White House does not believe the public is capable of handling it. Hence all of the misdirection and spin over “context” and the deviousness of us right-wing bloggers. But we are not the ones obfuscating the truth, and ducking any sort of genuine conversation with the American public over this.

While I’m at it, let me also point out that we were the first to post the information regarding Judge Sotomayor’s speech at Berkeley in 2001. We published this on May 5, more than a week before it showed up on the web site of the NY Times. (And we have very good reason to believe that the Times discovered it on our site.) Since Mr. Gibbs has also made similar charges regarding context over the infamous “wise Latina woman” quote contained within this speech, I would suggest you take a look at our actual post and see for yourself how “biased” we were.

If there is anyone who has taken things out of context, it’s Mr. Gibbs in formulating his own opinion and expressing his disdain for those who were behind the publication of this information. That would be us and I take offense at his remarks. It’s time to be honest with the American people, Mr. Gibbs.

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