During 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 featured three
soundbites 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."
The correspondent then played three soundbites 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 the Friday, May 29 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.