I’m reminded by this Volokh Conspiracy post that Obama used the same 95% canard in his July 2007 speech to the Planned Parenthood Action Fund (transcribed here*), after referring to Chief Justice Roberts’s intellect:

[I]n the overwhelming number of Supreme Court decisions, [intellect is] enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.
But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges.

* I’ve tweaked the transcript to correct its misspelling of Ginsburg’s name. Based on my own previous review of the video of the speech, I’ve also made some slight changes to the transcript’s punctuation of the passage and have substituted “criterion” for “criteria”. (I quoted the last part of this passage in my Weekly Standard essay on Obama’s commitment to liberal judicial activism.)