During the November 16 broadcast of his Newsradio 850 KOA show, host Mike Rosen read from a November 4 letter to the editor by former federal appeals court Judge Charles W. Pickering Sr. in The Wall Street Journal and repeated Pickering's false assertion that Alliance for Justice President Nan Aron said it was necessary to “look to the courts to create new rights that we won't be able to get from the legislature.” However, in a November 13 letter to the Journal responding to the Pickering letter [subscription only], Aron stated that the quote Pickering and Rosen attributed to her “actually came from conservative lawyer C. Boyden Gray, who was similarly distorting the meaning of my words to score political points."

Rosen highlighted Pickering's letter to the Journal during a monologue about purported “judicial activism.” According to Rosen:

ROSEN: Now listen carefully, 'cause this is a pretty solid definition of what judicial activism is: The individuals who fill these seats will have more power over tobacco policy, prison reform, control of HMOs, the death penalty, abortion, environmental issues, the constitutionality of redistricting for House elections, gun control, and the rights of women and minorities than the president or congressional leaders, and for a longer period of time.

That was the observation of Joe Califano, as quoted by Judge Charles Pickering.

Pickering goes on to make some observations of his own. Nan Aron, who's the president of Alliance for Justice -- this is a left-wing civil rights activist group -- in February 2005 on National Public Radio stated it more succinctly. She said, there is obviously no way we are going to get new rights created by the Congress, so now we have to look to the courts to create new rights that we won't be able to get from the legislature, end quote. That is judicial activism.

However, Rosen failed to note Aron's November 13 letter to the Journal that disputed Pickering's characterization. According to Aron's letter:

To support the canard that his jurisprudential opponents want judges to “create rights” when legislatures won't (“Justices Should Use Restraint and Stay Within the Constitution's Text,” Letters to the Editor, Nov. 4), Charles Pickering attributes to me a quote that actually came from conservative lawyer C. Boyden Gray, who was similarly distorting the meaning of my words to score political points.

So let me clear up what this hearsay hasn't: Neither I nor any other responsible progressive wants federal judges who “create rights.” What we favor are federal judges who enforce the law. The Constitution robustly safeguards liberty, while laws enacted by Congress establish a wide array of protections that make our nation safer, healthier and fairer. Judge Pickering may think that fulfilling the promise of these guarantees is tantamount to illegitimately “creating rights.” It is nothing of the sort. It is judges trying their best to get the law right. It is, in short, judges doing their jobs -- if they didn't, our laws wouldn't be worth the paper they're written on.

The February 16, 2005, broadcast of National Public Radio's Fresh Air from WHYY with host Terry Gross confirms that it was Gray -- not Aron -- who made the comments Rosen referenced as an example of “judicial activism.” During the broadcast, guest Gray falsely claimed that Aron “once said at a Federalist Society debate” that “because the Republicans now control the House, the Senate, and the White House for the first time in basically a hundred years, there is obviously no way, um, we're gonna get any new rights created by the Congress. So now we have to look to the courts, uh, to create new rights that we won't be able to get from the legislature.” Gray further asserted, “Now, that's her talking; those are her words, almost verbatim.”

From the February 16, 2005, edition of Fresh Air from WHYY with host Terry Gross on National Public Radio:

GRAY: Nan Aron, who is one of [People For the American Way President] Ralph Neas's colleagues on the left, if you will, she's chairman of the Alliance for Justice, once said at a Federalist Society debate that the Federalist Society sponsored between her and me -- she said, um, because the Republicans now control the House, the Senate, and the White House for the first time in basically a hundred years, there is obviously no way, um, we're gonna get any new rights created by the Congress. So now we have to look to the courts, uh, to create new rights that we won't be able to get from the legislature. Now, that's her talking; those are her words, almost verbatim, uh, and our view is, those kinds of new rights ought to come from the people, through the legislature, not from unelected judges.

Gray presumably was referring to a February 20, 2003, Federalist Society debate that featured Gray, Pickering, and Aron. At no point during that debate did Aron claim that “we have to look to the courts to create new rights that we won't be able to get from the legislature.” From the February 20, 2003, Federalist Society debate:

AUDIENCE PARTICIPANT: Ms. Aron, you seem to rely on the confirmation process to accomplish what Congress can do through other means. For example, if Congress wants to protect individuals, they can expand federal court jurisdiction, create new federal causes of action, and if they don't like the way a judge is behaving, they can simply impeach him. Is this not evidence of weak political will?

ARON: I can't think of -- I guess I can. I can think of the last time a judge was impeached, but it's more than 10 years ago. And these are for high crimes and misdemeanors. It's almost impossible to impeach a federal judge for the commission of a high crime and misdemeanor. And what I always found quite amusing was statements by people like Tom DeLay in the House. Any time a judge issued a ruling with which he disagreed, the DeLay would be right on the floor of the House saying “impeach that judge”. It's not done, and it shouldn't be done unless there's a real valid reason for that to occur. Congress isn't about to expand in large causes of action. You know that; I know that. This is not a Congress that necessarily, at least with a majority party, sees its role as expanding its capacity to meet the needs of the people of this nation. And neither house sees this role as its role. Therefore, I think that that notion would simply fail, given the current makeup in leadership in both the House and Senate today.

GRAY: I hope you're not suggesting that because the majority party, in your view, won't expand rights, the court should do it?

ARON: No. But I say that the courts are there to interpret those rights and interpret those statutes. And certainly, you want to have courts that do it in a way that respect and respond to what Congress is doing, not simply overrule what it's done.

As Media Matters for America has noted, Gray, former counsel for President George H.W. Bush, previously has issued false and misleading claims. Similarly, Pickering, a retired judge from the U.S. Court of Appeals for the 5th Circuit, also previously has used falsehoods to attack Democratic opposition to his judicial nomination, as Media Matters has noted.

From the November 16 broadcast of Newsradio 850 KOA's The Mike Rosen Show:

ROSEN: Now listen carefully, 'cause this is a pretty solid definition of what judicial activism is: The individuals who fill these seats will have more power over tobacco policy, prison reform, control of HMOs, the death penalty, abortion, environmental issues, the constitutionality of redistricting for House elections, gun control, and the rights of women and minorities than the president or congressional leaders, and for a longer period of time.

That was the observation of Joe Califano, as quoted by Judge Charles Pickering.

Pickering goes on to make some observations of his own. Nan Aron, who's the president of Alliance for Justice -- this is a left-wing civil rights activist group -- in February 2005 on National Public Radio stated it more succinctly. She said, there is obviously no way we are going to get new rights created by the Congress, so now we have to look to the courts to create new rights that we won't be able to get from the legislature, end quote. That is judicial activism.

From the November 4 letter by Charles W. Pickering Sr. in The Wall Street Journal:

In regard to Justice Sandra Day O'Connor's essay “The Threat to Judicial Independence” (editorial page, Sept. 27):

I agree completely with Justice O'Connor that the judiciary is in jeopardy. But with the utmost respect, she addressed the symptoms, not the underlying root cause that threatens the judiciary with irreparable harm in the not distant future.

Democrat elder Joseph Califano wrote a guest editorial for the Washington Post in 2001 clearly articulating the underlying root cause of the actions that disturb Justice O'Connor. Mr. Califano pointed out that “the federal courts have become increasingly powerful architects of public policy ... Environmentalists, prison reformers and consumer advocates have learned that what can't be won in the legislature or executive may be achievable in a federal district court where a sympathetic judge sits ... The individuals who fill these seats will have more power over tobacco policy, prison reform, control of HMOs, the death penalty, abortion, environmental issues, the constitutionality of redistricting for House elections, gun control and the rights of women and minorities than the president or congressional leaders, and for a longer period of time.”

Nan Aron, president of Alliance for Justice, in February 2005 on National Public Radio, stated it more succinctly: “There is obviously no way we are going to get new rights created by the Congress. So now we have to look to the courts to create new rights that we won't be able to get from the Legislature.”

[...]

Because judges are making political policy decisions -- as pointed out by Mr. Califano and Ms. Aaron -- special interest groups now see the confirmation of judges as elections for the highest political officials in the land. As a result, confirmation has become a bitter, mean-spirited political fight.

[...]

Charles W. Pickering Sr.
Jackson, Miss.

(Judge Pickering, retired from the Fifth Circuit Court of Appeals, is the author of “Supreme Chaos: The Politics of Judicial Confirmation & the Culture War.”)

From the November 13 letter by Nan Aron in The Wall Street Journal:

To support the canard that his jurisprudential opponents want judges to “create rights” when legislatures won't (“Justices Should Use Restraint and Stay Within the Constitution's Text,” Letters to the Editor, Nov. 4), Charles Pickering attributes to me a quote that actually came from conservative lawyer C. Boyden Gray, who was similarly distorting the meaning of my words to score political points.

So let me clear up what this hearsay hasn't: Neither I nor any other responsible progressive wants federal judges who “create rights.” What we favor are federal judges who enforce the law. The Constitution robustly safeguards liberty, while laws enacted by Congress establish a wide array of protections that make our nation safer, healthier and fairer. Judge Pickering may think that fulfilling the promise of these guarantees is tantamount to illegitimately “creating rights.” It is nothing of the sort. It is judges trying their best to get the law right. It is, in short, judges doing their jobs -- if they didn't, our laws wouldn't be worth the paper they're written on.

[...]

Judicial independence is under attack not because judges are busy creating new rights. Rather, it is under attack because the right's messaging machine spouts its facile rhetoric so often that activists are now responding with the overreaching measures Justice O'Connor correctly decries.

Nan Aron
President
Alliance for Justice
Washington