Gloria Borger and Bill Schneider advanced the conservative myth that judicial activism is solely a "liberal" practice, when at least two studies have found that the most "conservative" Supreme Court justices have been the biggest judicial activists.
On the May 26 edition of CNN Newsroom, CNN political analyst Gloria Borger said that "there's clearly going to be a debate about whether" Supreme Court nominee Sonia Sotomayor "would be too much of an activist judge. And, you know, this is -- this is a debate that we've heard time and time again between conservatives and liberals about how you approach the bench." Later, CNN political analyst Bill Schneider said Republicans "want to picture her as a liberal activist, and she has made a few statements in the past indicating that she wants to take an activist position on the bench -- that she believes life experience should be relevant." In making these remarks, Borger and Schneider advanced the baseless conservative claim that judicial activism is solely a "liberal" practice, when at least two studies -- looking at two different sets of criteria -- have found that the most "conservative" Supreme Court justices have been the biggest judicial activists.
A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder indicated that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Indeed, Gewirtz and Golder found that Justice Clarence Thomas "was the most inclined" to do so, "voting to invalidate 65.63 percent of those laws." Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress, according to the study. Gewirtz and Golder also noted that the word "activist" is "rarely defined":
When Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.
A recently published study by Cass R. Sunstein (recently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism -- the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism," while the "liberal" justices were most likely to exercise "judicial restraint."
From the 10 a.m. ET hour of CNN Newsroom on May 26:
HEIDI COLLINS (co-host): Let me ask you, though, about the political side of things. Because, clearly, it seems that we have also learned this morning one of the biggest issues is going to be how quickly this confirmation process begins and ends, if you will, trying to get to the August break.
BORGER: Right. And when you talk to people at the White House, they will point out that this is somebody who has been voted on twice in the Senate, once by a voice vote. For example, somebody in the White House pointed out to me that Orrin Hatch, senior member of the Judiciary Committee, has actually voted for her confirmation twice. So he's on the record voting for her twice.
And conservatives, however, are really pointing out that the target that they're looking at in terms of her qualifications is that she will allow her feelings to stand in the way of basic fairness. And that's a quote from a conservative talking points that we've just gotten here.
COLLINS: Specifically, what do they mean? What issues do they think, or at least are you hearing, that could happen?
BORGER: Well, they believe that not so much in her court decisions, but that she has spoken freely. They quote from a 2002 speech that she gave at Berkeley in which she stated she believes it's appropriate for a judge to consider their, quote, "experiences as women and people of color," which she said should, quote, "affect our decisions."
That is something that conservatives believe should not affect judicial decisions. They believe that's too activist. Clearly, President Obama believes that it should.
COLLINS: Well, is that a -- is that a fair argument, as we watch the doors of the East Room open here. Now, obviously, we are getting closer to the president coming to the microphone.
BORGER: It's two different approaches to the way a judge should adjudicate. And I think you're going to see that played out in the United States Senate. I don't think there's any doubt about her qualifications to serve. The White House points out she's the most qualified appointee in 70 years. But --
COLLINS: Why is that?
BORGER: Well, because she served -- because of where she served in the federal appeals bench, et cetera, et cetera. But they also, you know, there's clearly going to be a debate about whether she would be too much of an activist judge. And, you know, this is -- this is a debate that we've heard time and time again between conservatives and liberals about how you approach the bench. It's going to be a very interesting argument we're going to hear in the Senate.
COLLINS: Yeah, very much so. So last question for you, Gloria: You think it's all going to happen before August?
BORGER: Well, you know, the White House clearly has a quick timetable on this. I think it could well happen before the Congress leaves for its August recess.
COLLINS: OK. Very good. Gloria Borger, thanks so much -- our CNN senior political analyst. I want to take a minute to talk a little more about the politics of this pick. Republicans and Democrats alike have been waiting for this choice, of course. Joining us now is senior political analyst Bill Schneider -- Bill, good morning to you.
SCHNEIDER: Good morning.
COLLINS: What are you hearing on the topic?
SCHNEIDER: Well, I'm hearing that conservatives are fired up and ready to go. They -- she was on the list of possible nominees, and they've been compiling a dossier on her. A lot of the statements like the one that Gloria mentioned are in those dossiers. They intend to bring them up. They want to picture her as a liberal activist, and she has made a few statements in the past indicating that she wants to take an activist position on the bench -- that she believes life experience should be relevant.
But that is one reason why the president picked her. He said he wanted someone of empathy; someone who can relate to ordinary Americans. She once described herself as a down-to-earth litigator, and that's what she expects to be as a judge. I'm not going to be able to spend too much time on lofty ideals. That's what the president was looking for, and that's what he appears to have appointed.