David Ingram (Blog of the Legal Times) reports (thanks to How Appealing for the pointer):
In 2008, U.S. District Judge Bernice Donald participated in a panel discussion about employment discrimination. According to a transcript of the event, Donald, an African-American woman, told the audience that she has a “vastly different” view than her white male colleagues of what evidence supports an order for summary judgment.
It’s the kind of quotation that prompts quick criticism in the U.S. Senate, where Republicans took aim at Justice Sonia Sotomayor in 2009 for her comments about a “wise Latina” judge.
The quotation attributed to Donald made its way, via the transcript, into a newsletter of the nonprofit American Bar Foundation. And after President Barack Obama nominated Donald for the U.S. Court of Appeals for the 6th Circuit in December, the quotation made its way to the offices of the Senate Judiciary Committee.
The quotation came up at Donald’s confirmation hearing in March, and three Republican senators asked about it again in written follow-up questions.
But it turns out, from a tape of the event, that Judge Donald didn’t say this — a different speaker did. After some digging, Judge Donald figured this out, the American Bar Foundation published a correction, and Judge Donald was confirmed.
Interestingly, Judge Donald at first assumed that the transcript must have been correct (many people would, when comparing their hazy memory of an event with a seemingly authoritative transcript), and said that her statement was misinterpreted — but, as the evidence proves, it turns out that it wasn’t her statement at all. Here’s how she describes this:
Before my hearing, I made a good faith effort to be responsive in my answers to the Senate Judiciary Questionnaire and to provide all requested materials. After conducting a diligent search and making an exhaustive inquiry of persons and entities involved, I was advised by the American Bar Foundation (“ABF”) that there was no transcript or tape of this panel discussion. Although I did not recall making this statement because it is not something that I have ever believed, I assumed that the writer misinterpreted my remarks. It did not occur to me that the article might have misattributed another speaker’s remarks to me. Rather, I assumed that the statement must have been in reference to a specific case that I heard while sitting by designation. That is why I answered as I did during my hearing before the Senate Judiciary Committee. Then as now, I maintained that I adhere to Supreme Court and Sixth Circuit precedent in analyzing summary judgment motions in all cases.
Something to keep in mind, whether as someone quoted in a transcript, or as someone quoting a transcript; when possible, try to find a recording of the event. And remember the following New York Times correction:
Because of a transcription error, an article yesterday about Senator Alfonse M. D’Amato’s remarks about Judge Lance A. Ito misquoted the Senator at one point in some editions. In his conversation with the radio host Don Imus, he said: “I mean, this is a disgrace. Judge Ito will be well known.” He did not say, “Judge Ito with the wet nose.”