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David Frum (American Enterprise Institute) on Judge Sonia Sotomayor: Subprime Reporting, continued.

By Jack M. Balkin

The problem is not negligent fact-checking, it turns out. It?s deliberate misrepresentation.

Yesterday I posted on David Frum?s recent attack on Judge Sonia Sotomayor. Mr. Frum attacked Judge Sotomayor on public radio?s Marketplace for having only an ?abstract and academic? experience of business law?failing to note that Judge Sotomayor was a commercial litigator for eight years in a New York corporate law firm.

I noticed only later that Mr. Frum has also pursued this line of attack on his blog at NewMajority.com. There, Mr. Frum writes that ?Sonia Sotomayor reaffirms the Supreme Court?s 8 to 1 bias against lawyers with a background in business law.? Referring to the sitting Supreme Court justices, Mr. Frum adds: ?all have backgrounds in academia and government. Now one more.?

?Academia and government?? What happened to the eight years of commercial litigation? True, Judge Sotomayor was also a prosecutor at the Manhattan D.A.?s office. But clearly factually wrong that Judge Sotomayor does not have a background in business law.

When I posted, I thought it was a case of negligence, of poor fact-checking. I chalked it, in part, to the financial troubles that the media are experiencing today. How naïve! It turns out that Mr. Frum intentionally misrepresented Judge Sotomayor?s background?that this is, in fact, a case of knowing misrepresentation. In response to my post, Mr. Frum acknowledged to me that he knows full well that Judge Sonia Sotomayor was an attorney at a corporate law firm and handled cases involving large corporate clients. In fact, Mr. Frum wrote to me: ?As you surely know well, Sonia Sotomayor's private-sector work was very far from business counseling of the kind that I described. She worked mostly on enforcing trademarks against counterfeiters. (Fendi was a big client).?

Apparently, Mr. Frum even knows who her clients were! (And incidentally, since when is trademark infringement and intellectual property litigation not a central concern to American enterprises?) I take it then that when Mr. Frum calls Judge Sotomayor a judge ?whose experience of business law is abstract and academic,? he is knowingly misstating the facts.

I urged Mr. Frum yesterday to address this in a public forum. Silence.

I must be old-fashioned, but I?m still waiting for a retraction and a correction both from the American Enterprise Institute and Marketplace. I still believe in factual accuracy in public debate?particularly on the public airwaves that reach large audiences who may not be scrutinizing everyone?s biography. It is today far too easy to swiftboat public figures. In this case, though, the problem is intentional misrepresentation regarding a public figure. That, we should never condone in our public debates.

Full post as published by Balkinization on May 29, 2009 (boomark / email).