A nominee for a federal appeals court has found out the hard way how much trouble an error in a transcript can cause.
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.
Donald, though, didn’t say it.
In a written response (PDF) to the senators, she explains how she discovered the misattribution. Initially, she assumed she had said it, causing her to say at her confirmation hearing that her remarks had been misinterpreted. But after the hearing, she contacted the American Bar Foundation for at least the second time requesting a record of the panel discussion.
A couple weeks later, someone at the foundation contacted her. They had found a transcript and a tape recording of the panel, and the quotation actually belonged to Miriam Shearing, a former justice on the Nevada Supreme Court.
“Unfortunately, the contract transcriber to whom the tape was sent misattributed the quote to me and, because the author of the [American Bar Foundation newsletter] article was working from the transcript, the error was perpetuated,” Donald wrote the senators.
Donald, who sits in Memphis in the Western District of Tennessee, is scheduled for a final confirmation vote today at about 5:30 p.m.
Update (6:03 p.m.): The Senate confirmed Donald on a vote of 96-2.