SciCheck Digest

Justice Sonia Sotomayor, who as a diabetic is at higher risk for severe illness from COVID-19, has participated remotely in recent Supreme Court arguments. But Ted Nugent posted a bogus headline on Facebook — using a CNBC logo and byline — with the unfounded claim that Sotomayor tested positive for the disease. A CNBC spokesperson said the outlet didn’t publish it.

How is COVID-19 transmitted?

Full Story 

As we’ve written, Supreme Court Justice Sonia Sotomayor, who is diabetic and therefore at a higher risk for serious illness or death from COVID-19, has participated remotely in recent oral court arguments. 

An NPR report said Sotomayor worked from her chambers because of Justice Neil Gorsuch’s refusal to wear a face mask, even after Chief Justice John Roberts allegedly asked the other justices to mask up for the sake of Sotomayor. 

The NPR report was republished in several publications, including CNBC and USA Today.

On Jan. 18, the same day those reports were published, Ted Nugent — a rock musician and conservative activist with a history of sharing false claims about COVID-19 vaccines — posted an image of a fake CNBC headline on Facebook claiming that Sotomayor tested positive for COVID-19. The post has received more than 11,000 likes and shares.

“SUPREME COURT JUSTICE SONIA SOTOMAYOR TESTS POSITIVE FOR COVID-19 DESPITE TRIPLE VACCINATION, DILIGENT MASKING AND WORKING FROM HOME,” read the fabricated headline, which was created to look like a screenshot from a CNBC article.

Nugent’s post includes a CNBC logo and the byline of reporter Kevin Breuninger.

But CNBC told us the headline in the Facebook post is fake. 

“CNBC.com has not published an article with that headline,” Erin Kitzie, a CNBC spokesperson, told us in an email. 

We also could find no media reports or records of Sotomayor testing positive for COVID-19. 

We reached out to the Supreme Court public information office for clarification on Sotomayor’s health, but did not hear back. The court issued a press release when Justice Brett Kavanaugh tested positive for COVID-19 in October.

Editor’s note: SciCheck’s COVID-19/Vaccination Project is made possible by a grant from the Robert Wood Johnson Foundation. The foundation has no control over FactCheck.org’s editorial decisions, and the views expressed in our articles do not necessarily reflect the views of the foundation. The goal of the project is to increase exposure to accurate information about COVID-19 and vaccines, while decreasing the impact of misinformation.

Sources

Breuninger, Kevin. “Supreme Court’s Gorsuch refused to wear mask despite request over Sotomayor’s Covid concerns, report says.” CNBC. 18 Jan 2022.

Erin Kitzie, Public relations director, CNBC. Email to FactCheck.org. 20 Jan 2022. 

Jones, Brea. “Social Media Posts Continue to Misidentify Justice Sotomayor in Dinner Photo.” FactCheck.org. 13 Jan 2022. 

“Kevin Breuninger” webpage. CNBC. Accessed 20 Jan 2022. 

Centers for Disease Control and Prevention. COVID-19. “People With Certain Medical Conditions.” 14 Dec 2021. 

Nakamura, Amy. “Report: Supreme Court Justice Neil Gorsuch refuses to wear mask in the courtroom, despite request from Roberts.” USA Today. 18 Jan 2022. 

Ninh, Nicole (@nicninh). “JUST IN #SCOTUS Statement from Justices Sotomayor & Gorsuch on masks.” Twitter. 19 Jan 2022.

Spencer, Saranac Hale. “Social Media Posts Mislead on COVID-19 Vaccines, Deaths in Afghanistan.” 10 Sep 2021.

Supreme Court of the United States. Press release. 1 Oct 2021.

Totenberg, Nina. “Gorsuch didn’t mask despite Sotomayor’s COVID worries, leading her to telework.” NPR. 18 Jan 2022. 

United States v. National Federation of Independent Business, Et Al. No. 21A244. Supreme Court of the U.S. 07 Jan 2022.   

Vogue, Ariane de. “Gorsuch declines to wear mask, as bench-mate Sotomayor works from her office.” CNN. 19 Jan 2022.

The post Ted Nugent Posts Fake Headline, Claim About Sotomayor’s Health appeared first on FactCheck.org.

Quick Take

Politico misidentified Justice Sonia Sotomayor in a photo of a Jan. 7 dinner of Democrats – the same day she participated remotely in oral arguments. Politico corrected the error on Jan. 8. But social media posts continued to wrongly claim Sotomayor attended the dinner and appears in the photo. The woman pictured is Sen. Chuck Schumer’s wife.

Full Story

The U.S. Supreme Court heard oral arguments on Jan. 7 in two challenges to the Biden administration’s attempts to expand the use of COVID-19 vaccinations among private employers and health care workers.

Justice Sonia Sotomayor, who is diabetic, chose to stay in her office and participated remotely in the court arguments that began at 10 a.m.  

The following day, Jan. 8, the Politico Playbook newsletter misidentified Sotomayor in a photo taken at a dinner in a Washington, D.C., restaurant on the night of Jan. 7 with Democratic leaders, including House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer.

Politico ran a correction later that day, explaining that the woman pictured was actually Schumer’s wife, Iris Weinshall.

Politico, Jan. 8: Editor’s Note: We published an item atop today’s Playbook that erroneously placed Supreme Court Justice Sonia Sotomayor dining with Democratic leaders at a Washington restaurant Friday night. The person who sent us the tip and the picture mistook Iris Weinshall, wife of Senate Majority Leader Chuck Schumer, for the justice. POLITICO standards require we verify this information. The editor who received the tip failed to do so in this case. We deeply regret the error. The corrected version of the newsletter is published below.

Though the information was corrected, social media posts that repeated the error hadn’t been updated as of Jan. 13 and others continued to share the mistake.

“Justice Sotomayor, who participated in yesterday’s SCOTUS arguments remotely from her chambers, seen last night at Le Diplomate with Speaker Pelosi, Senate Majority Leader Schumer and Sens. Klobuchar and Durban, per Politico,” reads a Facebook post that we archived on Jan. 10 and that hadn’t been corrected as of Jan. 13. “They are all laughing at us.”  

A post shared to Twitter on Jan. 8, which was still up as of Jan. 13, carried the photo with the caption, “Justice Sotomayor, Nancy Pelosi, Chuck Schumer and Nancy Pelosi dinner last night in DC. Photo and headline story by Politico.  Now we know where Sotomayor got her talking points on Covid case before her court right now!! Blatantly partisan. ⁦@GOP⁩ ⁦@SenRandPaul.” 

But Sotomayor, as we said, wasn’t at the Jan. 7 gathering at the restaurant.

In addition to Politico’s correction, a spokesperson for Schumer told the Associated Press that Sotomayor was not at the dinner.

We reached out to the Supreme Court public information office for comment but did not hear back.

Editor’s note: FactCheck.org is one of several organizations working with Facebook to debunk misinformation shared on social media. Our previous stories can be found here.

Sources

Daniels, Eugene. “POLITICO Playbook: Civil rights leaders see a turning point for Biden.” Politico Playbook. 8 Jan 2022. 

Kelety, Josh. “ Justice Sotomayor didn’t attend dinner with Democratic leadership.” Associated Press. 9 Jan 2022. 

Kiely, Eugene, et al. “FactChecking the Justices’ COVID-19 Claims.” FactCheck.org. 10 Jan 2022.

Sherman, Mark and Jessica Gresko. “Supreme Court skeptical of Biden’s workplace vaccine rule.” Associated Press. 7 Jan 2022.

United States v. National Federation of Independent Business, Et Al.. No. 21A244. Supreme Court of the U.S. 07 Jan 2022.   

The post Social Media Posts Continue to Misidentify Justice Sotomayor in Dinner Photo appeared first on FactCheck.org.

The U.S. Supreme Court heard oral arguments Jan. 7 in two challenges to the Biden administration’s attempts to expand the use of vaccinations.

Here we present the facts on some of the COVID-19 claims made by the justices.

Children Hospitalized with COVID

In the first of two cases, the justices heard from lawyers who were seeking to block the Department of Labor’s temporary emergency rule for businesses with 100 or more workers that would require workers to be fully vaccinated or be tested at least once a week.

In her line of questioning during the case, National Federation of Independent Business v. Department of Labor, Justice Sonia Sotomayor vastly overstated the number of children with COVID-19 who are in “serious condition.”  

“We have hospitals that are almost at full capacity with people severely ill on ventilators,” she said. “We have over 100,000 children, which we’ve never had before, in — in serious condition and many on ventilators.”

According to the latest data from the U.S. Department of Health & Human Services, there were about 4,700 children hospitalized in an in-patient pediatric facility on Jan. 10 who were “suspected or laboratory-confirmed-positive for COVID-19.” That includes those in “observation beds,” HHS noted. 

There has been a concerning surge in children hospitalized with COVID-19 in recent weeks, particularly among the very young, though the Centers for Disease Control and Prevention says that may be due to an overall surge in cases with the omicron variant rather than an indication of increased severity for young children.

“At this time, it appears that severe illness due to COVID-19 is uncommon among children,” the American Academy of Pediatrics wrote in a Jan. 4 report. “However, there is an urgent need to collect more data to assess the severity of illness related to new variants as well as the longer-term impacts of the pandemic on children, including ways the virus may harm the long-term physical health of infected children, as well as its emotional and mental health effects.”

Nonetheless, Sotomayor’s statistic on the number of children experiencing a “serious condition” as a result of COVID-19 was way off, assuming she was talking about hospitalizations, which the context of her comments suggests.

But Sotomayor was correct that cases of children hospitalized with COVID-19 are at a record high. So is the number of infections.

“COVID-19 cases among US children are increasing exponentially, far exceeding the peak of past waves of the pandemic,” the American Academy of Pediatrics reported, citing weekly data ending Jan. 6 that showed the cases nearly tripling over the course of two weeks.

According to the CDC, the seven-day average of hospital admissions for those up to 17 years old was 830 on Jan. 8. That’s a 34% increase from the week before. Of particular concern is the rise in the rate of cases among children ages 4 and younger who were admitted to hospitals and were infected with the coronavirus.

“Hospitalization rates have increased for people of all ages and while children still have the lowest rate of hospitalization of any group, pediatric hospitalizations are at the highest rate compared to any prior point in the pandemic,” Dr. Rochelle Walensky, the CDC’s director, said in a press conference on Jan. 7. “Sadly, we are seeing the rates of hospitalizations increasing for children zero to four, children who are not yet currently eligible for COVID-19 vaccination.

“We are still learning more about the severity of omicron in children, and whether these increases we are seeing in hospitalization reflect a greater burden of disease in the community or the lower rates of vaccination for these children under age 18,” Walensky continued. “Currently just over 50% of children, 12 to 17 are fully vaccinated, and only 16% of those 5 to 11 are fully vaccinated. We know that vaccination prevents severe disease and hospitalizations. … Please, for our youngest children, those who are not yet eligible for vaccination, it’s critically important that we surround them with people who are vaccinated to provide them protection.”

On “Fox News Sunday” on Jan. 9, Walensky was asked about Sotomayor’s comment, given that HHS was reporting only a fraction of the figure she cited for pediatric hospitalizations from COVID-19.

Walensky confirmed the lower figure was accurate and noted that “while pediatric hospitalizations are rising, there are still about 15-fold less than hospitalizations of our older age demographics.”

“Comparatively the risk of death is small, but, of course, you know, children aren’t supposed to die,” Walensky said.

COVID-19 Deaths

Sotomayor also said that “we are now having deaths at an unprecedented amount.” That’s incorrect. Daily deaths and the seven-day average of deaths due to COVID-19 reached their peak in January 2021.

On Jan. 13, 2021, the seven-day average of deaths was 3,421, and the number of deaths on that day was 4,048, according to the Centers for Disease Control and Prevention. That’s the peak for the COVID-19 pandemic. As of Jan. 7, the day Sotomayor spoke, the seven-day average was 1,500 deaths, with the total reaching 2,230 that day. Since then, the seven-day average has risen slightly, to 1,552 on Jan. 9.

The latest figures are up a bit from December, when the seven-day average of deaths was around 1,100 to 1,200 for nearly all of the month. But the figures are not “unprecedented.”

Rising COVID-19 Cases

In the second case, Biden v. Missouri, the justices entertained a challenge to a Biden administration rule issued in November that requires eligible staff at health care facilities that participate in Medicare and Medicaid programs to be fully vaccinated against COVID-19.

At several points in oral arguments for both cases, Justice Stephen Breyer said there were about 750,000 new cases of COVID-19 yesterday. And, by one measure, he is correct.

“There were three-quarters of a million new cases yesterday. New cases. Nearly three-quarters, 700-and-some-odd thousand, okay?” Breyer said in NFIB v. Department of Labor. “That’s 10 times as many as when OSHA put this rule in.”

The CDC data show there were about 790,000 new daily cases on Jan. 6 — the day before the oral arguments. We prefer to use the rolling seven-day average of daily cases, which was nearly 615,000 on Jan. 6.

So, Breyer’s 750,000 figure was right by one measure. And, by that measure, he is not far off when he said it is “10 times as many as when OSHA put this rule in.” The Occupational Safety and Health Administration published the rule on Nov. 5, when there were 89,088 daily cases. The moving seven-day daily average was 71,454.

By either measure, Breyer’s larger point is spot on: The number of COVID-19 cases has been rising rapidly in recent months.

(We should note that Breyer mistakenly said “750 million new cases” at one point, drawing criticism from some conservative sites. But it was clearly a slip. He referenced the number 750,000 several times.)

Vaccine Effectiveness Against Coronavirus Transmission

On multiple occasions, while discussing the vaccine mandate for health care workers, Justice Elena Kagan alluded to the ability of the COVID-19 vaccines to prevent transmission of the coronavirus, or SARS-CoV-2, from health care workers to patients.

Although her comments were tied to the legal arguments, some of them could be interpreted to leave the false impression that vaccinated people cannot spread the virus.

“Well, all the secretary is doing here is to say to providers, you know what, like basically the one thing you can’t do is to kill your patients,” she said at one point, referring to HHS Secretary Xavier Becerra, who imposed the mandates in question. “So you have to get — you have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients. I mean, that seems like a pretty basic infection prevention measure. You can’t be the carrier of disease.”

It has always been possible for a fully vaccinated person to spread the coronavirus, although vaccines reduce this risk, at least against the delta variant and other earlier versions of the virus.

Against omicron, it’s not yet known how well the vaccines prevent transmission. Several experts told us that the vaccines are expected to reduce some omicron transmission, but likely less than for delta.

“I think it is reasonable to suspect that there will be some level of protection — but difficult to say what this level is. And it could be small,” Johns Hopkins epidemiologist David Dowdy told us.

“The vaccine-mediated reduction in transmission for Omicron relative to Delta or prior variants is likely to be worse. Probably a lot worse,” Deepta Bhattacharya, an immunologist at the University of Arizona College of Medicine, told us in an email. “But that’s different than zero.”

“There is plenty of pre-omicron evidence that vaccines prevent transmission, including for delta. But what we know about omicron is preliminary,” University of Pennsylvania infectious disease fellow Dr. Aaron Richterman said.

The best evidence thus far, he said, comes from an unpublished study from Denmark that looked at infection spread in households. It found unvaccinated people were about 40% more likely to transmit than those who were fully vaccinated, who in turn were about 40% more likely to transmit than those who received a booster.

This suggests that vaccination can reduce transmission of omicron by lowering a person’s infectiousness, Richterman said. But the other main way that vaccination can reduce transmission — by preventing infection in the first place — may not apply with omicron.

“This is where we’re going to see a large drop [in transmission prevention] with omicron because two vaccine doses don’t really prevent infection,” he said. “Whereas with delta, you’re talking 70, 80% reductions in the risk of infection.”

Preventing viral transmission to patients, while important, isn’t the only reason why hospitals might want to make sure their staffers are vaccinated. The vaccines would prevent institutions from losing staff members for extended periods of time because of the reduced risk of severe disease and death, for example.

The post FactChecking the Justices’ COVID-19 Claims appeared first on FactCheck.org.

Supporters of Judge Neil Gorsuch’s Supreme Court nomination describe him as a “mainstream judge.” Their evidence: He has sided nearly 99 percent of the time with the majority on the 10th U.S. Circuit Court of Appeals, and 97 percent of the court’s rulings were unanimous.

But those statistics are not unusual and provide no insight into how Gorsuch may rule as a justice on the high court.

The “vast majority” of federal appeals court cases are “decided without dissent,” and the 10th Circuit “is no exception to this general trend,” the nonpartisan Congressional Research Service said in an analysis of Gorsuch’s record.

The CRS report said 2.54 percent of the opinions issued by the 10th Circuit from 1998 to 2009 included a written dissent, citing a 2010 paper in the Loyola of Los Angeles Law Review that reviewed the opinions of six circuit courts. That paper found the 3rd Circuit (2.33 percent) and the 5th Circuit (1.14 percent) had lower dissent rates than the 10th Circuit.

As for Gorsuch, the CRS calculated the percentage of written dissents among seven judges on the 10th Circuit, and found that Gorsuch “displayed relatively more willingness to dissent from others’ majority opinions than some colleagues.” Gorsuch’s rate of dissent of 1.6 percent “places him in the middle” among his colleagues.

Christopher A. Cotropia, who authored the 2010 paper cited by the CRS, told us that the dissent rates for Gorsuch and his court say more about how federal appeals courts work than how Gorsuch may rule on the Supreme Court.

“He’s doing what most appellate court judges do,” Cotropia, a law professor at the University of Richmond, said in an interview. “It’s not instructive as to what he will do when he is one of nine [on the Supreme Court].”

Cotropia illustrated his point by determining the dissent rates for two associate justices, Samuel A. Alito Jr. and Sonia Sotomayor, who previously had served on circuit courts. Alito had a 1.6 percent dissent rate on the 3rd Circuit Court and Sotomayor had a 0.69 percent dissent rate on the 2nd Circuit. Nevertheless, the judges are on opposite extremes of the court. By one measure, Sotomayor is the most liberal of the Supreme Court justices and Alito is the second most conservative.

Republican Talking Point

President Donald Trump’s selection of Gorsuch in late January to replace the late Justice Antonin Scalia has set off a historic partisan battle in the Senate. That battle came to a head on April 6, when Senate Majority Leader Mitch McConnell invoked the so-called “nuclear option” to advance Gorsuch’s nomination.

Unable to muster the 60 votes needed to end a Democratic filibuster, McConnell changed the Senate rules to allow a simple majority of 51 votes to end the filibuster. The Senate is now expected to confirm Gorsuch’s nomination April 7 by a simple majority. The Republicans control 52 Senate seats.

Throughout the contentious confirmation process, the White House and Republicans described Gorsuch as “mainstream,” while Democrats have criticized him as “extreme.” Those are subjective terms, and each side is entitled to its opinion.

What caught our attention is Republicans’ repeated use of the same statistics as evidence of Gorsuch’s “mainstream” judicial record.

When the Senate Judiciary Committee approved Gorsuch’s nomination on April 3 along party lines, Republican Sen. Chuck Grassley said that Gorsuch’s record on the federal appeals court “falls well within the mainstream.”

Grassley, April 3: In the 10 years since, his record on the bench has proved that the judge falls well within the mainstream. He’s participated in 2,700 cases. He’s voted with a majority 99 percent of the time, and roughly 97 percent of those 2,700 cases were decided unanimously.

In a blog item posted April 4, the White House used the same statistics to describe Gorsuch as “the ultimate example of a mainstream judge.” The blog item said, “In the more than 2,700 cases he has participated in on the 10th Circuit, 97 percent of them have been unanimously decided and he was in the majority 99 percent of the time.”

Two days earlier on “Fox News Sunday,” Senate Majority Leader McConnell gave a truncated version of the GOP talking point: “In the majority, 99 percent of the time. Ninety-seven percent of his rulings were unanimous.”

Gorsuch himself repeatedly cited the statistics during his confirmation hearings. On March 22, Gorsuch described the 10th Circuit Court’s low dissent rate as “an amazing accomplishment.”

Gorsuch, March 22: And even then of those over the last 10 years we’ve been unanimous 97 percent of the time in the cases I’ve participated in. That’s a wonder. That’s an amazing accomplishment.

But such high rates of unanimity are not unusual for the federal courts of appeals, as the Congressional Research Service explained in its report on Gorsuch’s record.

CRS, March 8: Federal appellate judges are bound by Supreme Court and circuit precedent and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions. Moreover, unlike the Supreme Court, which enjoys “almost complete discretion” in selecting its cases, the federal courts of appeals are required to hear many cases as a matter of law. As a result, the appellate courts consider “many routine cases in which the legal rules are uncontroverted.” Perhaps indicative of the nature of federal appellate work, the vast majority of cases decided by three-judge panels of federal courts of appeals are decided without dissent. The Tenth Circuit, where Judge Gorsuch serves, is no exception to this general trend, with the overwhelming majority of opinions issued by that court being unanimous.

In footnotes, the CRS cites a book by law professor Frank B. Cross of the University of Texas Law School, “Decision Making in the U.S. Courts of Appeals,” which notes the “relative paucity of circuit court panel dissents.” The CRS also cited Cotropia’s paper, “Determining Uniformity Within the Federal Circuit by Measuring Dissent and En Banc Review,” noting that it found “from 1998 to 2009, 2.54% of the opinions issued by the Tenth Circuit included a dissent.” As we said, two of the six courts that Cotropia reviewed had lower percentages than the 10^th Circuit.

Cotropia said the nature of how federal appeals courts work explains the lack of dissents. Unlike the Supreme Court, which can pick and choose its cases, the appeals court must take all appeals and “a lot of cases are just slam dunks,” he said. Because it must take all cases, the appeals court also has a heavy workload and part of the job is “just keeping the trains running.” Also, he said, appeals court dissents are not cited often, but “a Supreme Court dissent carries a lot more weight.”

In fact, Gorsuch himself in delivering the Thirteenth Annual Barbara K. Olson Memorial Lecture at the Federalist Society said the 10th Circuit’s high percentage of unanimous rulings is “pretty typical.”

“Over 90 percent of the decisions issued by my court are unanimous; that’s pretty typical of the federal appellate courts,” Gorsuch said in his speech, which was reprinted in the Harvard Journal of Law and Public Policy.

As for Gorsuch, this is what the CRS reported:

• Gorsuch authored 778 majority opinions and 12 of them, or 1.5 percent, were accompanied by written dissents.
• Gorsuch authored 33 dissenting opinions to accompany 2,060 decisions in which a dissent or concurrence could occur. That’s a 1.6 percent dissent rate, which “places him in the middle of his colleagues” — fourth among seven judges included in the CRS study. Judge Jerome A. Holmes had the lowest dissent rate at 0.6 percent.

“Judge Gorsuch’s rate of dissent is pretty much on the mean with other circuits and judges I have looked at,” Cotropia told us. “He is certainly not the lowest, but he does not reach the higher end as well. I don’t know that it tells us much at all.”

CRS also provides this word of caution about appeals court judges who join in majority opinions.

CRS, March 8: The act of joining an opinion authored by another judge does not necessarily reflect full agreement with the underlying opinion. For example, in an effort to promote consensus on a court, some judges will decline to dissent unless the underlying issue is particularly contentious. As one commentator notes, “[T]he fact that a judge joins in a majority opinion may not be taken as indicating complete agreement. Rather, silent acquiescence may be understood to mean something more like ‘I accept the outcome in this case, and I accept that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed on.’”

Despite these caveats about the relative meaning of dissent rates, we have found that senators on both sides of the aisle have cited such statistics over the years when supporting their party’s Supreme Court nominees.

Echoes of Sotomayor, Alito Hearings

During the 2006 confirmation hearings for Supreme Court nominee Samuel A. Alito Jr., Grassley and Sen. Orrin Hatch told Alito that he had a dissent rate of 1.6 percent of cases that he decided on the 3rd Circuit.

Grassley, Jan. 11, 2006: I recall from reading a synopsis of your opinions, and the reality is, as I see it, you don’t disagree with majority opinions more frequently than most Federal appeals judges do in similar cases. And of more than 4,800 cases—and that we got from the Washington Post. But of more than 4,800 cases that you decided during your tenure on the Third Circuit, you dissented only in 79 cases, which would be only 1.6 percent of all those cases.

Hatch, Jan. 11, 2006: Well, would it surprise you to know that you have dissented only 79 times in nearly 5,000 cases in which you have participated? That comes to about 1.6 percent, which is considerably lower than most others who have been on the appellate courts.

Cotropia, the University of Richmond law professor, confirmed Alito’s 1.6 percent dissent rate for us using the same method that the CRS used to calculate the rate for Gorsuch. Cotropia found that Alito had authored 82 dissents on 5,192 majority opinions.

(Technical note: Unlike the CRS, Cotropia did not exclude recusals by Alito. But he said that would be such a small number as to have zero effect on Alito’s dissent rate.)

During the confirmation hearings for Justice Sonia Sotomayor in 2009, Democratic Sen. Chuck Schumer also touted Sotomayor’s low dissent rate, except he focused on the few times that Sotomayor disagreed with Republican-appointed judges.

Schumer said Sotomayor’s “record shows that she is in the mainstream” because she “has agreed with Republican colleagues 95 percent of the time” on the 2nd Circuit.

Republican Sen. Hatch acknowledged the Democratic talking point on her agreement with Republican-appointed judges — “for which I congratulate her,” he said. But Hatch added that many of the Democrats who cited that statistic in praise of Sotomayor’s “mainstream” record also opposed Alito “even though he had voted with his Democrat-appointed Third Circuit colleagues 99 percent of the time during a more longer appeals court career.”

Cotropia told us that actually Sotomayor had a lower overall dissent rate than either Alito or Gorsuch. He found she issued 25 written dissents out of 3,641 opinions for a rate of just 0.69 percent.

Sotomayor and Alito are good examples of how federal appeals judges “dissent more as justices on the Supreme Court,” he said.

Using the Supreme Court database maintained by the Washington University School of Law, Cotropia found that Alito has a Supreme Court dissent rate of 17.25 percent (124 dissents in 719 rulings) and Sotomayor has a 17.95 percent rate (84 dissents out of 468 rulings).

We also note that, as of the 2015 term, Sotomayor is the most liberal of the Supreme Court justices and Alito is the second most conservative, according to a 2016 study co-authored by Lee Epstein, the co-director of the Center for Empirical Research in the Law at the Washington University School of Law. Her study, “President-Elect Trump and his Possible Justices,” compared the judges on Trump’s list of Supreme Court candidates to sitting justices. For current justices, Epstein’s study used Martin-Quinn scores, which measure the relative location of current U.S. Supreme Court justices on an ideological scale based on their voting patterns.

“These judges, even with low dissent when judging on the appeals court, show their ideology when they go to the Supreme Court,” Cotropia said.

That same study projects Gorsuch — once confirmed to the Supreme Court, as expected — would fall “within the Alito-Scalia ideological range” and to the right of Alito.

We take no position on Gorsuch’s nomination or whether he is “mainstream” or not. What we have found, though, is that a circuit court judge’s overall dissent rate isn’t useful in determining a nominee’s ideology.

Updated, April 7: The Senate confirmed Gorsuch, 54 to 45, on April 7. Three Democratic senators — Joe Manchin, Heidi Heitkamp and Joe Donnelly — joined the GOP majority to approve the nomination.

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After the story was published, Rep. Putnam’s communications director, Keith Rupp, contacted FactCheck.org to say that Putnam had actually voiced support for Sotomayor. In an interview with the Tampa Tribune, Putnam said that he "believe[d] that she should be confirmed." Also, in the May 31 Orlando Sentinel, columnist Scott Maxwell quoted Putnam as saying:

Putnam: I have not seen anything that would disqualify her. And I certainly would not call her a racist based on anything we have seen so far.

So while Putnam may not have directly denounced Limbaugh’s words, he certainly disagreed with them.

The post Off Target in Sotomayor Ad appeared first on FactCheck.org.

Two versions of the ad take Republican Reps. John Mica and Adam Putnam to task for not denouncing the words of radio host Rush Limbaugh, whom the groups identify as a "Republican leader." The unelected Limbaugh may be influential with some listeners, but we’ll leave it to our readers to determine how much of a party leader he is, and to decide how responsible these two members of Congress are for his words.

Aside from that, the ads stick to the facts. They accurately capture Rush Limbaugh saying that Sotomayor "doesn’t have any intellectual depth. She’s an angry woman, she’s a bigot. She’s a racist." Limbaugh said that on the May 27 edition of his radio program. While he has not retracted his comments, he has also allowed that he could support her nomination if she "has sensibility toward life in a legal sense."

And the ads correctly say that Sotomayor would be the "first Latina" and the "first Puerto Rican" to sit on the Court, staying away from the mostly academic argument, which we laid out in an Ask FactCheck, about whether or not she would be the first Hispanic to do so.

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Sotomayor and two other judges on the 2nd U.S. Circuit Court of Appeals had upheld a lower court decision in the case, saying that the city of New Haven, Conn., was on firm legal ground when it threw out the results of two exams firefighters took in order to be promoted. No African Americans scored well enough on the test to be eligible for promotion — a result disproportionate to their presence on the force or in the population — and the city, fearing it would be found liable under civil rights law for acting on the results, decided to start over. That’s when a group of white and Hispanic firefighters sued the city.

The decision by the 2nd Circuit panel last year was brief — just a few sentences — and unsigned. The panel upheld the ruling by a lower-court judge in favor of the city. Today’s Supreme Court action, by a vote of 5-4, reversed that result, as many expected. Justice Anthony Kennedy, writing for the majority, treats the 2nd Circuit decision that was either written or agreed to by Sotomayor — with whom he could be serving by next fall — delicately.

In fact, Kennedy barely mentions the 2nd Circuit, except in a description of how the case got where it is:

Majority opinion, Ricci v. DeStefano: After full briefing and argument by the parties, the Court of Appeals affirmed in a one-paragraph, unpublished summary order; it later withdrew that order, issuing in its place a nearly identical, one-paragraph per curiam opinion adopting the District Court’s reasoning. 530 F. 3d 87 (CA2 2008). Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over written dissents by Chief Judge Jacobs and Judge Cabranes. 530 F. 3d 88. 

Kennedy wrote that the city of New Haven made its decision to throw out the test results purely on the basis of race, and that mere fear of litigation didn’t justify what amounted to discrimination against nonminorities.

Majority opinion, Ricci v. DeStefano: Whatever the City’s ultimate aim – however well intentioned or benevolent it might have seemed – the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

Republicans on the Senate Judiciary Committee now have fresh fuel to use on Sotomayor when she goes before the committee, currently scheduled to happen on July 13. But the fact that four justices agreed with her — including David Souter, the one she would replace — may temper the impact, for some observers at least, of critiques of her differences with the bench’s more conservative members.

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In addition, if the justices take the case and Sotomayor is confirmed, she will have to decide whether or not to take part in the high court’s decision on it. She didn’t sit on the 7th Circuit NRA case, but the opinion in that case referred to and agreed with an unsigned one in the 2nd Circuit that she and two other judges issued this year.

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The decision in National Rifle Association v. Chicago takes some of the air out of the argument, put forward by the NRA and others, that Sotomayor is anti-gun rights. Sotomayor and two other 2nd Circuit judges had ruled in January, in Maloney v. Cuomo, that it was "settled law," based on earlier Supreme Court decisions, that the prohibition on curtailing the right "to keep and bear Arms" was only applicable to the federal government. The 7th Circuit’s ruling on June 2 hews to a similar interpretation of Supreme Court precedent:

NRA v. Chicago: If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.

Strikingly, the 7th Circuit panel assigned to this case included Judges Frank Easterbrook and Richard Posner, two leading lights of conservative jurisprudence. It’s actually in line with their federalist (states’ rights) points of view. But the decision also helps the argument by Sotomayor’s supporters that she is not an activist judge and sticks closely to precedent.

The 9th Circuit appellate court recently ruled the other way on this issue, in Nordyke v. King. But the 7th Circuit explicitly rejected the reasoning in that opinion and said it agreed with the Maloney decision.

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A: Depending on your point of view, the late Benjamin Cardozo might be considered “Hispanic.”

FULL QUESTION:

Is Sonia Sotomayor really the first Hispanic nominated to the Supreme Court? Republicans in my office insist she is not.

FULL ANSWER:

This is something of an academic question. For Hispanic organizations applauding Judge Sotomayor’s nomination, there is no question that she is the first one of their own to be nominated to the high court.

The Congressional Hispanic Caucus, for example, issued a May 26 news release saying she would be “the first Hispanic and only the third woman on the highest court of the land, once confirmed.” Democratic Rep. Charles A. Gonzalez, 1st vice chair of the CHC, said, “President Obama’s nominee will be the first Hispanic on our nation’s highest court.” And the National Council of La Raza issued a news release with the headline: “Judge Sonia Sotomayor Would Be the First Hispanic on the Supreme Court if Confirmed.”

As a Spanish-speaking child of Puerto Rican parents, Sotomayor qualifies as Hispanic by any definition. But the term “Hispanic” could also be stretched to include an earlier Supreme Court justice, the late Benjamin Cardozo, depending on how one chooses to define the term. We won’t attempt to resolve that – it’s a matter of opinion – but we can offer the pertinent facts and let readers judge.

Cardozo was nominated to the high court in 1932 by President Herbert Hoover and was without question the second Jewish member of the court. He came from a family of Sephardic Jews that had been in the United States for generations. Cardozo’s biographer, Andrew Kaufman, says his immediate ancestors came here in the 1700s via England and Holland. He says “family legend” held that the Cardozo clan had earlier Portuguese roots, but that there is “no firm documentation about the particulars.”

So assuming that Cardozo could indeed trace some of his ancestors back to Portugal, does that make him “Hispanic”? Some Portuguese consider themselves to be Hispanic and some don’t.

Even the federal government can’t agree. The Census Bureau considers the term “Hispanic” to be the same as “Spanish” or “Latino” and does not include Portuguese Americans in that category. The federal Office of Personnel Management agrees, defining “Hispanic” as “[a] person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish cultures or origins,” and adding: “Does not include persons of Portuguese culture or origin.”;

But the Small Business Administration takes exactly the opposite stance, stating on page 48 of its manual for the 8(a) program to aid minority-owned businesses: “SBA has defined “Hispanic American” as an individual whose ancestry and culture are rooted in South America, Central America, Mexico, Cuba, the Dominican Republic, Puerto Rico, or the Iberian Peninsula, including Spain and Portugal.” Similarly, the Department of Transportation includes “persons of … Spanish or Portuguese culture or origin” under their definition of “Hispanic” for determining whether a business is a “Disadvantaged Business Enterprise” eligible to receive preference in government contracts. And the Library of Congress lists former Rep. Tony Coelho, a California Democrat whose grandparents were born in Portugal, among “Hispanic Americans in Congress, 1822-1995.”

That publication, incidentally, was put together by the Government Printing Office at the direction of the Congressional Hispanic Caucus, which had admitted Coelho as a member. That’s the same caucus that now says Sotomayor would be the “first” Hispanic on the high court if confirmed.

-Brooks Jackson

Correction, June 4: We originally referred to Sotomayor’s parents as “immigrants,” which was not correct. Puerto Rico is a U.S. territory, and Puerto Ricans have been U.S. citizens since 1917.

Sources

“CHC Applauds Historic Supreme Court Nomination.” Press release. Congressional Hispanic Caucus 26 May 2009.

“NCLR LAUDS HISTORIC APPOINTMENT OF SOTOMAYOR TO NATION’S HIGHEST COURT; Judge Sonia Sotomayor Would Be the First Hispanic on the Supreme Court if Confirmed.” PressNational Council of La Raza, 26 May 2009.

Sherman, Mark. “First Hispanic justice? Some say it was Cardozo” The Associated Press, 26 May 2009.

Jones, Ashby. “Has the Supreme Court Already Had a Hispanic Justice?” Wall Street Journal “Law Blog,” 12 May 2009.

U.S. Census Bureau. “What does the term Hispanic or Latino origin mean?” Frequently Asked Questions Web page, accessed 28 May 2009.

“8(a) Business Development Program Standard Operating Procedure” Chapter 2D, Paragraph 3(a)(1)Small Business Administration 11 April 2009: 48.

“Disadvantaged Business Enterprise,” Office of Civil Rights, Federal Highway Administration. Frequently Asked Questions Web page, accessed 28 May 2009.

“Hispanic Americans in Congress, 1822-1995.” Government Printing Office, 1995.

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