Special Report falsely suggests activism question deleted from questionnaire for Sotomayor

On the June 4 edition of Fox News' Special Report, a report by legal correspondent Shannon Bream falsely suggested that Sen. Patrick Leahy (D-VT) eliminated a question on judicial activism from the questionnaire for Judge Sonia Sotomayor's Supreme Court nomination. In fact, Leahy reportedly removed the question, which was based on a conservative definition of judicial activism that defined activism in part as "a tendency by the judiciary to employ the individual plaintiff as a vehicle for the imposition of far-reaching orders extending to broad classes of individuals," in 2007 pursuant to a bipartisan agreement. Indeed, Bush administration judicial nominees were not asked about "judicial activism" on questionnaires in the 110th Congress. Bream aired a clip of Ethics and Public Policy Center president and National Review Online contributor Ed Whelan asserting that Leahy is "no longer concerned now about judicial activism." As evidence, Whelan asserted that Leahy had "chosen to eliminate the question that asked the nominees about judicial activism" from Sotomayor's nomination questionnaire and added, "I think that's telling in and of itself." Bream then said that "[q]uestions about judicial activism were on the questionnaires for the last two men to go through this process and end up on the court -- Chief Justice John Roberts and Justice Samuel Alito."

However, on the June 4 edition of CNN's Lou Dobbs Tonight, congressional correspondent Brianna Keilar reported that "[b]efore 2007, nominees were asked about their views on judicial activism. But based on a bipartisan agreement, the Judiciary Committee decided the subject was better left for the confirmation hearing and also for the interviews Sotomayor is having with senators."

Indeed, according to Senate documents, the Judiciary Committee questionnaires filled out in the 109th Congress (2005-06) by Roberts, Alito, and nominees to lower courts such as 5th Circuit court nominee Michael Brunson Wallace, all contained a question about "judicial activism":

Please discuss your views on the following criticism involving "judicial activism."

The role of the Federal judiciary within the Federal government, and within society, generally, has become the subject of increasing controversy in recent years. It has become the target of both popular and academic criticism that alleges that the judicial branch has usurped many of the prerogatives of other branches and levels of government.

Some of the characteristics of this "judicial activism" have been said to include:

a. a tendency by the judiciary toward problem-solution rather than grievance-resolution;

b. a tendency by the judiciary to employ the individual plaintiff as a vehicle for the imposition of far-reaching orders extending to broad classes of individuals;

c. a tendency by the judiciary to impose broad, affirmative duties upon governments and society;

d. a tendency by the judiciary toward loosening jurisdictional requirements such as standing and ripeness; and

e. a tendency by the judiciary to impose itself upon other institutions in the manner of an administrator with continuing oversight responsibilities.

But in the 110th Congress (2007-08), the questionnaires did not ask judicial nominees about "judicial activism." For example, the questionnaires filled out by Debra Ann Livingston, a Bush nominee for the 2nd U.S. Circuit Court of Appeals, and Jennifer Walker Elrod, a nominee for the 5th U.S. Circuit Court of Appeals, did not include the question.

As Media Matters for America has noted, the definition of judicial activism embodied in the previous Judiciary Committee questionnaire is not the only definition of activism, and by some definitions, conservative Supreme Court judges have been the most activist. For instance, 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 June 4 edition of Fox News' Special Report with Bret Baier:

[begin video clip]

SEN. LINDSEY GRAHAM (R-SC): I do hope that the Senate and the committee will allow us a chance to go through not only the questionnaire, but 3,000 cases -- a very long background -- in many ways distinguished, in some ways troubling.

BREAM: But for all the volumes of material today -- thousands of pages to dissect and examine -- critics say you should also take a close look at what's missing.

WHELAN: This questionnaire is prepared by Senator Leahy, the chairman of the Judiciary Committee. And for one reason or another, he's chosen to eliminate the question that asked the nominees about judicial activism. Apparently, he's no longer concerned now about judicial activism. So, I think that's telling in and of itself.

[end video clip]

BREAM: Questions about judicial activism were on the questionnaires for the last two men to go through this process and end up on the court -- Chief Justice John Roberts and Justice Samuel Alito. Now, as we continue to go through all the speeches and writings and volumes of material, one thing has popped up as an interest this afternoon -- a speech that Sotomayor gave in 1996 that eventually was turned into a law review article put on paper with a co-author. It is about something the Supreme Court has often decided on and will continue to wrestle with -- it's the issue of campaign finance.

From the June 4 edition of CNN's Lou Dobbs Tonight:

KEILAR: But for all the questions, there isn't one that gets at the central concern Republicans have: Will Sotomayor's personal experience influence her rulings? Before 2007, nominees were asked about their views on judicial activism. But based on a bipartisan agreement, the Judiciary Committee decided the subject was better left for the confirmation hearing and also for the interviews Sotomayor is having with senators.