A July 8 Washington Post article by staff writer Peter Baker on the Republican strategy to replace retiring Supreme Court Justice Sandra Day O'Connor and Chief Justice William Rehnquist, whose retirement is expected soon, promoted conservative spin that "judicial activism" is the unique province of liberal Supreme Court justices and judges. Baker also reported the White House accusation that Democrats will oppose any Supreme Court nominee President Bush puts forward, without noting that this talking point -- which is easily rebutted -- is a cornerstone of the White House strategy to undermine any actual Democratic opposition.
Baker uncritically accepted the right's view that conservative, and only conservative, judges adhere to a doctrine of strict constitutional interpretation:
Twin vacancies would present Bush with an intriguing choice: Does he use the opportunity to appoint two reliable conservatives who would shift the court away from what he sees as improper judicial activism on divisive issues such as abortion, religion in public life and gay rights? Or does he try to balance competing impulses by filling one seat with a conservative who would strictly interpret the Constitution and the other with his friend, Attorney General Alberto R. Gonzales, who is less favored by the right but would be the first Hispanic on the nation's highest court?
Without analysis or reflection, Baker adopted the notion that conservatives "strictly interpret the Constitution," while liberals ... what? Ignore its literal language? Disregard precedent? He also implied that Gonzales does not believe that a judge's role is to strictly interpret the law. But isn't that what Gonzales himself accused newly confirmed 5th U.S. Circuit Court of Appeals Judge Priscilla Owen, his then-colleague on the Texas Supreme Court, of failing to do when he wrote that adopting a statutory interpretation that Owen had proposed would be "an unconscionable act of judicial activism"?
Baker appears not to have considered the possibility that conservative judges and justices can also be tagged with the "judicial activist" label. Indeed, while advancing the conservative presumption about liberal judicial activists, Baker never even offered a definition of judicial activism, much less examine the validity of the accusation. But in a July 6 New York Times op-ed, Yale law professor Paul Gewirtz and recent Yale Law School graduate Chad Goler defined "strik[ing] down a law passed by Congress" as "one reasonably objective and quantifiable measure of a judge's activism." Under that standard, Gerwitz and Golder found that Justice Clarence Thomas was the most activist justice on the Supreme Court. By contrast, Justices Ruth Bader Ginsburg and Stephen Breyer -- the only two current justices to have been appointed by a Democratic president -- were the least likely to strike down federal laws. Gewirtz and Golder concluded: "At least by this measure (others are possible, of course), the [conservative] group is the most activist."
Baker also reported that "The White House presumes that Democrats will fight anyone it nominates, and claimed this statement was "reinforce[d]" by a quote from conservative gossip website the Drudge Report:
The White House presumes that Democrats will fight anyone it nominates," and found reinforcement for this view in comments by Sen. Charles E. Schumer (D-N.Y.) overheard on his mobile telephone while riding a train to New York. "We are contemplating how we are going to go to war over this," Schumer was reported saying on the Drudge Report Web site.
Baker offered no explanation for his contention that a rumored statement by Schumer to the effect that the Democrats are preparing for "war" over an unacceptable nominee "reinforce[s]" the White House's presumption that "Democrats will fight anyone it nominates." The White House claim isn't an insignificant matter -- it mirrors a central conservative talking point in the PR battle over the Supreme Court vacancy; the conservative group Progress for America is even running an ad making the same claim. But in repeating the claim and lending it credibility by asserting that it was "reinforce[d]" by Schumer's purported statement, Baker ignored evidence to the contrary. While Baker did quote a Schumer spokesman saying that the senator "hopes for a consensus nominee who will get broad support in the Senate," he omitted other evidence that Democrats in fact are seeking consensus with the White House.
Democratic senators have repeatedly called for consultation, and the bipartisan compromise on judicial nominations reached by 14 senators in May urges consultation, a direct rebuke of the president's largely unilateral approach to judicial nominations to date. Additionally, Senate Minority Leader Harry Reid (D-NV) has identified specific individuals he described as qualified nominees. Reid stated that Sens. Lindsey Graham (R-SC), Mel Martinez (R-FL), Mike Crapo (R-ID), and Mike DeWine (R-OH) "would be outstanding Supreme Court members," and also asserted that Gonzales is "qualified." Outside progressive groups have also suggested candidates who could enjoy bipartisan support.