CNN Uses Two Liberals to Bash Conservatives' 'Judicial Activist' Label

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President Barack Obama; Sonia Sotomayor, Supreme Court Nominee; Carol Costello, CNN Correspondent; & Alina Cho, CNN Correspondent | NewsBusters.orgDuring a segment on Friday’s “American Morning,” CNN correspondent Carol Costello used two liberal talking heads to cast doubt on the “judicial activist” label used by conservatives. Costello used three sound bites from Jonathan Turley of George Washington University Law School, who branded the use of the term as “perfectly juvenile,” and one from NPR’s Nina Totenberg to cast aspersions on conservatives who are concerned about judges legislating from the bench.

Costello’s report, which began 20 minutes into the 6 am Eastern hour of the CNN program, began by labeling the “judicial activist” term itself an “act” by politicians: “We hear politicians say it all the time, ‘we don't need an activist judge legislating from the bench.’ But what exactly does that mean? Critics roll their eyes when they hear, ‘we don't want an activist judge on the bench,’ when, in reality, that’s exactly what they want. I’m just saying, if that’s true, why not drop the act and tell voters what you really mean?” She further explained that it was a “buzzword that’s got staying power.”

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The correspondent then played three sound bites of political leaders using the term, all of them Republican -- former President George W. Bush, and Senators John McCain and Orrin Hatch. She continued by introducing the first clip from Turley, whose political leanings are omitted: “It’s used so often and is so politically loaded, Jonathan Turley, a constitutional law expert, suggests you turn off the TV when you hear it.” During this first clip, Turley used his “perfectly juvenile” moniker for those who use the “judicial activist” label.

Costello also tried to cast doubt of her own on the term: “A too-liberal court, he says, will pick and choose which laws it doesn’t like and find a way to change their meaning or throw them out. If that’s the case, then how to explain the court under Chief Justices Rehnquist and Roberts. Both are conservative, and under their leadership, experts say, the high court overturned about 65 state or federal laws. That’s more than were overturned in the previous liberal-led courts. So is that bad? Good? Both?” However, she didn’t give an explanation as to why these laws were overturned by the Rehnquist and Roberts courts.

After Turley explained in his second sound bite that “yesterday’s judicial activists are often today’s judicial heroes,” the correspondent cited the Supreme Court under Earl Warren’s leadership as “judges [who] aren’t considered evil activist judges, but wise men.” She continued by leading into Totenberg’s sole clip: “Some say the problem with the term ‘judicial activist’ today is that it’s evolved into something that has nothing to do with actively impartially interpreting the law.” The NPR commentator outlined during her sound bite how conservatives use the “judicial activist” label versus liberals: “Conservatives for a couple of decades have succeeded by using that term as a pejorative. Liberals in the last few years have adopted it as a pejorative about this court.”

Once Costello concluded her report, substitute anchor Alina Cho gave her thumbs-up to Turley’s “perfectly juvenile” label at the end of the segment: “I love activist judge, ‘perfectly juvenile.’”

The full transcript of Carol Costello’s report from Friday’s “American Morning:”

ALINA CHO: The White House now digging in for a confirmation fight over President Obama’s Supreme Court nominee Sonia Sotomayor, and her historic selection this week has drudged up a familiar and politically-charged argument.

Carol Costello live from D.C. with a new segment that we’re calling ‘I’m Just Saying’ -- nobody better to do it than Carol. So, Carol, we hear the term ‘activist judge’ a lot lately. We’ve heard it in the past, but a lot of people are wondering, what exactly does it mean?

CAROL COSTELLO: (laughs) You got that right. You’re right -- we hear politicians say it all the time, ‘we don't need an activist judge legislating from the bench.’ But what exactly does that mean? Critics roll their eyes when they hear, ‘we don't want an activist judge on the bench,’ when, in reality, that’s exactly what they want. I’m just saying, if that’s true, why not drop the act and tell voters what you really mean?

COSTELLO (voice-over): It’s a buzzword that’s got staying power.

FORMER PRESIDENT GEORGE W. BUSH: Activist judges.

SENATOR JOHN MCCAIN: Activist judges.

SENATOR ORRIN HATCH: Activist judges.

COSTELLO: It’s used so often and is so politically loaded, Jonathan Turley, a constitutional law expert, suggests you turn off the TV when you hear it.

PROFESSOR JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL: This type of name calling is perfectly juvenile. It’s simply saying that nobody could possibly disagree with my interpretation of the Constitution.

COSTELLO: But those who use the phrase argue activist judges are dangerous because they legislate from the bench.

MCCAIN: They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that.

COSTELLO: A too-liberal court, he says, will pick and choose which laws it doesn’t like and find a way to change their meaning or throw them out. If that’s the case, then how to explain the court under Chief Justices Rehnquist and Roberts. Both are conservative, and under their leadership, experts say, the high court overturned about 65 state or federal laws. That’s more than were overturned in the previous liberal-led courts. So is that bad? Good? Both?

TURLEY: The curious thing is that yesterday’s judicial activists are often today’s judicial heroes.

COSTELLO: In 1954, many accused activist judges of wrongly overturning state laws in Brown versus Board of Education, on the grounds school segregation violated the U.S. Constitution. Today, those judges aren’t considered evil activist judges, but wise men. Some say the problem with the term ‘judicial activist’ today is that it’s evolved into something that has nothing to do with actively impartially interpreting the law.

NINA TOTENBERG, NATIONAL PUBLIC RADIO: Conservatives for a couple of decades have succeeded by using that term as a pejorative. Liberals in the last few years have adopted it as a pejorative about this court.

COSTELLO: That means those who say they don’t want activist judges really do if they support their beliefs. And some say the term has become so politically charged, it affects who a president nominates.

TURLEY: The tendency is to appoint someone who’s never said or done nothing particularly interesting in their career.

COSTELLO (on-camera): And then, some say, enter Judge Sonia Sotomayor. Apart from a controversial ruling in an affirmative action case, on other hot-button social issues like abortion, the death penalty and religion, Sotomayor hasn’t issued any substantive rulings on those things, which, of course, makes charges of judicial activism very hard to pin on her. And Alina, that’s why people are saying this is such a brilliant choice by Barack Obama.

CHO: I love activist judge, ‘perfectly juvenile.’ Carol Costello, live from D.C -- Carol, thank you.

—Matthew Balan is a news analyst at the Media Research Center.


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Judicial Activism...

Definitions from a Liberal perspective:

"Interpreting the Constitution" - The completely acceptible act of picking out one word or phrase in the Constitution, then taking it out of context to mean something that it does not, but should, in order to make legal or illegal some liberal cause that does not have enough popular support to become law.   Example, taking one private citizen's property and giving it to another private citizen for the sole reason that the receiving citizen will pay more taxes, is obviously eminent domain because the government will have more money for "public use." Or being secure in your person means that if it's in you, you can legally kill it.  Or because the word "welfare" is used in the Preamble, we should and can have "welfare programs."

"Judicial Activism" - The completely unacceptible practice of assuming that the words in the Constitution mean exactly what they say, and nothing more.  This flawed "activist" thinking would require actual Constitutional Amendments to enact liberal policy, dude, a waaaay more difficult proposition than making law, so it is frowned upon.  Example, "the right of the people to keep and bear arms, shall not be infringed," simply means that States can have National Guards with real guns and maybe real bullets, wrongo.  To assume that "people" means the same thing here as in every other part of the constitution is the worst kind of activist thinking.

 

Judicial Activist wouldn't

Judicial Activist wouldn't be a 'buzzword' and would not have 'staying power' if it did not accurately describe the faults of Olympian self righteous elitist judges who power hungrily take on the function of a super legislature, instead of their narrow but important roles as appliers, and in instances where the law isn't clear, narror interpreters of such legislation.

It's the same with the terms liberal and progressive, people know the toxic nature of those terms which is why liberals and socialists and progressives like Obama go under deep cover to hide their true convictions until elected. The press will do its best to abet that deception because the dinosaur media is in bed with socialists, liberals and progressives and give them as much aid and comfort as possible.

Carol,

My taxes paid for your report. I want to hear another set of opinions from the right! NPR is not my National radio and I resent my tax money going to it and other Leftist front organizations!

Turley is being perfectly juvenile.

Notice how all the people quoted are in favor of judicial activism. No originalists are quoted or represented.

More importantly, Turley (and the reporters who follow him) have deliberately conflated two senses of the phrase 'judicial activism' into one. He tries to use one sense of the phrase to cover the more dangerous one.

HUNTING ACTIVISM

The phrase 'judicial activism' has a generic meaning. I don’t know how much of this is known by the general public, but the Supreme Court doesn’t accept all of the cases that come their way - there are too many of them. Over the years, then, the Court has adjusted to the sheer volume of cases by restricting themselves to cases that make some legal point. They’re forced to judge a lot of purely technical cases, but when they want to make a point, they select cases that give them a chance to establish a legal precedent. Naturally, then, they take the most controversial cases, and the frequently overturn the existing precedent. That is, by all definitions, activism. They hunt for cases that make a point. We’ll call this the “hunting” sense of judicial activism.

DUE PROCESS ACTIVISM 

But there's a different, and more dangerous sense of 'judicial activism,' and it's the kind conservatives oppose. Conservatives hate it when judges overturn a traditional law because the law supposedly violates some “fundamental right” found in the constitution. The problem is that the fundamental right is never found in the text of the constitution. Instead, it comes from the passion and imagination of some judge, who then reasons that since it's so clear to him, it must be a fundamental right, and therefore covered by a principle called substantive due process. That principle lets him get away with it.

Substantive due process 

Although supporters claim that it can be grounded in several places, substantive due process usually calls the 14th Amendment “home.” The second sentence of the 14th Amendment reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … “

The problem, of course, is defining what privileges or immunities come with being a citizen of the United States. What are our fundamental rights? That’s the problem. The Constitution doesn’t specifically spell any out. No one has ever voted on a document or list of “official” rights.

Judges take it upon themselves to spell out what our fundamental rights are. Judges don’t have the right to do that. Judges who want to make a certain practice legal or illegal can simply say that its part of our fundamental rights and that gives them carte blanche to endorse any practice they see fit.

The beauty of this strategy is that there is no text to contradict them. If a practice isn’t mentioned in the constitution, you can’t use a text to contradict them. For argument’s sake, we’ll call this the “due process” sense of activism.

____ 

When a guy like Turley criticizes judicial activism, he starts by talking about activism in the “hunting” sense, and waves it all off as “they all do it.” But he’s misleading you. The activism that conservatives hate is the “due process” activism, and they don’t all do that. Only liberals do that.

Turley knows the difference. He’s simply lying. Which is juvenile.