Politifact.com vs. Stuart Taylor

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Pulitzer Prize-winning Web site Politifact.com has come under fire here at Hoystory for several months because of its tendency to consult left-wing sources and then use them to discredit conservatives and prop up President Obama.

Now, I’m not usually a defender of Ann Coulter, but Politifact.com decides to give a statement that she made regarding the Ricci case and Judge Sonia Sotomayor’s 2nd Circuit panel’s handling of it a “False.”

Columnist Ann Coulter wrote recently that Supreme Court nominee Sonia Sotomayor tried to hide her participation in a controversial race discrimination case involving firefighters in New Haven, Conn.

In a July 1, 2009, column in Human Events headlined "So much for wise Latinas," Coulter wrote that "Sotomayor threw out their lawsuit in a sneaky, unsigned opinion — the judicial equivalent of ‘talk to the hand.’"

This part of Coulter’s claim is right: The opinion was unsigned. But the truth stops there.

Politifact.com then goes on to expand on the fact that an unsigned opinion is not, by definition “sneaky.” Which of course, no one thinks it is. The reason why it was sneaky in the Ricci case was the fact that the issues raised by the case (disparate impact vs. disparate treatment) had not been addressed at the appellate court level before.

In fact, Politifact.com’s recitation of the facts of the case are misleading – and would earn their own “analysis” a “partly true” if they were to parse it themselves honestly.

In February 2008, the panel issued a summary order, without comment, upholding the lower court’s finding. Another 2nd Circuit judge asked the full appeals court to rehear the case, but the court’s other judges declined.

So, one judge asked the full appeals court to rehear the case, but he was just a one-off? False. The court refused to rehear the case on a 7-6 vote, not 12-1.

But it’s not just Coulter that Politifact.com has an issue with. They’ve also got a problem with National Journal’s Stuart Taylor who wrote a long piece making much the same case.

The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case — which ended up producing one of the Supreme Court’s most important race decisions in many years — had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.

Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice.

In any event, any 2nd Circuit judge who had chanced to find and read the panel’s summary order in Ricci would have found only the vaguest indication what the case was about.

That’s why the 2nd Circuit’s move was “sneaky.” And that’s why you can’t trust Politifact.com to be an honest source.

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