Discussing David Souter's reported plan to retire from the Supreme Court, Pat Buchanan repeated the myth that conservative judges are by definition not activists.
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During the May 1 broadcast of MSNBC's Morning Joe, while discussing U.S. Supreme Court Justice David Souter's reported plan to retire, MSNBC political analyst Pat Buchanan asserted that "conservatives do have and Republicans do have a real good issue on the court when you ask people, 'Do you want conservative constitutionalists as justices or liberal activists?' " However, as Media Matters for America has repeatedly noted, a 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the biggest practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress.
Gewirtz and Golder stated that "one reasonably objective and quantifiable measure of a judge's activism" is "[h]ow often ... each justice voted to strike down a law passed by Congress." Based on that criteria, Gewirtz and Golder found that -- notwithstanding the myth among conservatives and many in the media that liberal judges are the real "judicial activists" -- Justice Clarence Thomas was the most likely to strike down federal laws, followed at the time by Justice Anthony Kennedy and Justice Antonin Scalia. Justices Ruth Bader Ginsburg and Stephen Breyer -- the only two current justices appointed by a Democratic president -- were the least likely to do so.
From the May 1 edition of MSNBC's Morning Joe:
SCARBOROUGH: You know, Pat, if I were President Obama, a progressive that got elected president of the United States, I would say, OK, the only thing that George Bush got right for the conservative movement -- he got Alito right, and, of course, he got John Roberts right. I would scour the country to find a 45-year-old progressive, somebody as engaging as John Roberts, and put him up there.
BUCHANAN: You know, I think John is exactly right, that what you want is a Stephen Breyer type --
JOHN HARWOOD (CNBC chief Washington correspondent): Technocrat.
BUCHANAN: -- who was noncontroversial, but he votes right down the line liberal. Solid on that, but he doesn't come in as a Joycelyn Elders flamer --
BUCHANAN: -- or something like that that which will set off all the conservatives. Because the conservatives do have and Republicans do have a real good issue on the court when you ask people, "Do you want conservative constitutionalists as justices or liberal activists?" They win that hands down. So I think he ought to go with a Breyer type, too.