GMA repeats myth of Sotomayor as judicial activist

On the July 13 edition of ABC's Good Morning America, correspondent Jan Crawford Greenburg uncritically reported what she said Sen. Jeff Sessions (R-AL) told her about the confirmation hearings of Judge Sonia Sotomayor, saying that Sessions "wants to make these hearings a teaching moment, in a way contrasting her approach to the law with that of conservatives who think the court should take a more limited role." However, by uncritically repeating Sessions' comments, Greenburg advanced the myth that conservative judges are proponents of judicial restraint while liberal judges practice judicial activism. Moreover, in her report, the only case Greenburg referred to was Ricci v. DeStefano, but the conservative majority's decision in that case wasn't an example of the Supreme Court "tak[ing] a more limited role"; the five-justice majority reversed the determination of the city of New Haven.

As NBC News chief White House correspondent Chuck Todd noted of the Ricci decision: "[T]he majority, actually -- well, to put it bluntly -- legislated from the bench." He further explained: "They put a new rule on instances like this when they said, well, you know, you can't -- you gotta prove that you could lose a lawsuit, not just be sued in order to decide to throw out a test like this," adding that "the irony is that the conservatives criticize this legislating from the bench. Well, it was the conservative majority here that did institute a new rule."

Moreover, not only did conservative Justice Antonin Scalia vote to reverse the city's decision in Ricci; in his concurring statement, he suggested that parts of the Civil Rights Act of 1964 need to be changed. Scalia wrote that the court's decision in Ricci "merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?" He later wrote: "But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how -- and on what terms -- to make peace between them."

As Media Matters for America has previously noted, at least two studies -- looking at two different sets of criteria -- have found that the most "conservative" Supreme Court justices have been among 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 Thomas "was the most inclined" to do so, "voting to invalidate 65.63 percent of those laws." Another recently published study by Cass R. Sunstein (who has been nominated 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 more likely to engage in "judicial activism," while the "liberal" justices were more likely to exercise "judicial restraint."

Further, the Congressional Research Service recently found that "the most consistent characteristic of Judge Sotomayor's approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents." The June 19 CRS analysis of Sotomayor's selected opinions further stated: "Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping its judicial role." And according to the Politico's Jeanne Cummings, "Sotomayor's history suggests the very sort of judicial restraint that conservatives clamor for in a nominee."

From the July 13 edition of ABC's Good Morning America:

KATE SNOW (co-anchor): OK, Chris, now to Washington, where Senate confirmation hearings begin today for Supreme Court nominee Sonia Sotomayor. President Obama called the nominee on Sunday to wish her luck, which she may need. She'll be facing some tough critics. ABC's Jan Crawford Greenburg joins us now from Washington with more.

Good morning, Jan.

GREENBURG: Kate, she's met with 89 senators, spent six weeks studying constitutional law and sat through countless prep sessions, and, today, Sonia Sotomayor is going to take that witness stand for the hearings that will determine whether she gets a Supreme Court appointment for life.

[begin video clip]

GREENBURG: Judge Sotomayor's seat at the witness table will be ground zero in the latest battle over the Supreme Court, and Republicans and Democrats are spoiling for a fight.

SEN. PATRICK LEAHY (D-VT): She's had more experience than any other nominee in nearly 100 years.

SESSIONS: I'm going to try to give her a fair hearing, but I am troubled.

GREENBURG: In the hearings, Republican senators will sharply question Sotomayor on race and affirmative action, especially her comments that a "wise Latina woman ... would more often than not reach a better conclusion than a white male."

The Supreme Court also delivered a recent blow when it reversed one of her decisions in a discrimination case. Sotomayor had ruled against a group of white and Hispanic firefighters who claimed the city of New Haven, Connecticut, was giving preferential treatment to blacks.

WENDY LONG (chief counsel for the Judicial Confirmation Network): Republican senators are concerned, and all Americans should be concerned, when a judge decides cases based on their own personal views and political agenda.

GREENBURG: Sotomayor is an historic pick. She would be the first Hispanic on the court. She grew up in the Bronx, raised by her mother, and went on to elite schools, Princeton and Yale Law. And it was a Republican president, George H.W. Bush, who nominated her to be a district court judge. Her compelling life story and the lack of a so-called smoking gun have softened Republican opposition. With a decisive majority in the Senate, Democrat Leahy is confident.

LEAHY: She will be confirmed.

[end video clip]

GREENBURG: And short of a major misstep or revelation, Republicans know they just don't have the votes to defeat Sotomayor. Senator Sessions told me he wants to make these hearings a teaching moment, in a way contrasting her approach to the law with that of conservatives who think the court should take a more limited role -- Kate.