Beware the Numbers

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May 26, 2009 12:54 p.m.

So what to make of the charge from the right that Judge Sotomayor has an allegedly high rate of reversals by the Supreme Court? Fox News’ Major Garrett just raised it with Robert Gibbs at the daily White House press briefing. Here’s the text of exchange (video here):

Garrett: Is a nominee’s history of opinions and reversals a relevant factor for the public and the Senate?

Gibbs: Well, I think it is one of the many factors that likely will be picked over and weighed as we go through this.

Garrett: How does the White House evaluate Judge Sotomayor’s record on this score?

Gibbs: Well, I think if one were to create 380 opinions and have 3 reversed.

Garrett: What’s the Supreme Court ratio?

Gibbs: You tell me.

Garrett: 6 opinions, 3 reversals.

Gibbs: Well, Major, don’t just judge, I wouldn’t judge you on the stories I call you about, I might judge you on the full package of your repertoire. Whether or not you ultimately see fit to change any of the rhetoric on …

Garrett: I am not a nominee for the Supreme Court, let the record reflect.

Gibbs: I would agree with that.

So when outfits like the conservative Judicial Confirmation Network say that Sotomayor has a “terrible record of reversals by the Supreme Court,” what they’re referring to is the narrow and misleading issue of how the Supreme Court has ruled when it has gone so far as to accept the case on appeal. There does not appear to be any sort of unusually high number of her cases making it to the Supreme Court.

Late Update: TPM Reader JH checks in:

About those reversals: It’s worth pointing out that the Supreme Court reverses most of the decisions it takes. The percentage of cases it affirms usually is somewhere in the 25 to 30 percent range, and rarely as high as 40 percent. There’s actually a saying among Supreme Court lawyers that the court grants cert to reverse. In that context, a .500 record is pretty good.

Later Update: Here’s a piece on the Supreme Court reversal rate in recent years that confirms what JH is pointing out.

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