In a report on political fallout from the Terri Schiavo case, CNN congressional correspondent Ed Henry said that the case had "fueled Republican anger at state and federal judges," but he omitted the fact that liberal and conservative judges alike rejected appeals by Schiavo's parents to restore her feeding tube. In addition, while airing a portion of Sen. John Cornyn's (R-TX) Senate floor speech suggesting that "judicial activism" had motivated violence against judges, Henry neglected to note that two recent incidents of violence targeting judges were both apparently motivated by personal grievances, not by alleged "judicial activism" -- a term Henry made no effort to define.
From the April 5 edition of CNN's Inside Politics:
HENRY: The politically charged battle over Terri Schiavo fueled Republican anger at state and federal judges. Now Senator John Cornyn has taken the criticism a step further, suggesting recent violence against judges may be tied to public disgust with judicial activism.
CORNYN [clip]: I wonder if there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public that it builds up and builds up and builds up to the point where some people engage in violence.
HENRY: Cornyn, a former state Supreme Court justice in Texas, made clear he does not believe the violence was justified. But Democrats called the comments irresponsible.
In asserting that the Schiavo case had "fueled Republican anger" at judges, Henry omitted a key fact: Efforts by Terri Schiavo's parents to restore her feeding tube were rejected by federal courts at all levels, including the 11th Circuit Court of Appeals -- which consists of a 7-5 Republican majority -- and the Supreme Court, seven of whose nine justices are Republican appointees. And it was a staunchly conservative 11th Circuit judge, Stanley F. Birch Jr., who wrote a stinging rebuke of Congress and President Bush for their rush to pass a bill that granted the federal courts jurisdiction over the Schiavo case. Birch wrote:
A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of "activist judges." Generally, the definition of an "activist judge" is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people -- our Constitution. [p. 3]
Henry also failed to note that contrary to Cornyn's statement, the two most recent acts of violence targeting judges are apparently unrelated to "judicial activism." The Washington Post noted in its April 5 report on Cornyn's comments:
Two fatal episodes made headlines this year, although authorities said the motives appeared to be personal, not political. In Chicago, a man fatally shot the husband and mother of a federal judge who had ruled against him in a medical malpractice suit. And in Atlanta last month, a man broke away from a deputy and fatally shot four people, including the judge presiding over his rape trial.
Henry's use of the term "judicial activism" is only the most recent example of CNN reporters and hosts referring to "judicial activism" and "activist judges" without explaining what these terms mean. As explained in a November 2004 Atlantic Monthly article, Karl Rove, adviser to President Bush, and other conservatives have used these phrases to stoke political outrage across diverse groups of conservatives:
Among Rove's other innovations was a savvy use of language, developed for speaking to the conservative base about judicial races. Candidates were to attack "liberal activist judges" and to present themselves as "people who will strictly interpret the law and not rewrite it from the bench." A former Rove staffer explained to me that the term "activist judges" motivates all sorts of people for very different reasons. If you're a religious conservative, he said, it means judges who established abortion rights or who interpret Massachusetts's equal-protection clause as applying to gays. If you're a business conservative, it means those who allow exorbitant jury awards. And in Alabama especially, the term conjures up those who forced integration. "The attraction of calling yourself a 'strict constructionist,' " as Rove's candidates did, this staffer explained, "is that you can attract business conservatives, social conservatives, and moderates who simply want a reasonable standard of justice."
By invoking the term "judicial activism" to describe Republicans' complaints about the judiciary -- without noting its origins or providing a definition -- journalists like Henry implicitly endorse the view that Republicans alone stand for the opposite principle: that the role of a judge is to interpret rather than make the law. In reality, no one disagrees with that assertion. Rather, the debate is over the proper interpretation of the law in a particular case. In fact, in the case that apparently motivated Cornyn's remarks, the conservative Birch blasted the Republican-run Congress and President Bush for overreaching and implied that it was they who were guilty of ignoring the Constitution in order to achieve a desired policy outcome. Far from having any intrinsic meaning, "judicial activism" is a phrase adopted by Republicans to great effect and often directed at judges for decisions that are deemed activist only because the judges' critics don't like the outcome.
In a segment that ran twice on CNN on April 5, on Inside Politics and on Lou Dobbs Tonight, CNN senior political analyst Bill Schneider repeated Republican charges that "activist judges" were to blame in the Schiavo case without questioning this formulation:
SCHNEIDER: Take the Terri Schiavo case. Republicans portrayed activist judges as the villains.
Schneider previously reproduced the conservative slant on judicial activism on the March 21 edition of Live From...:
SCHNEIDER: Religious conservatives and other conservatives have protested judicial activism for all these decades on what issues? Abortion, school prayer, sex education, pornography, same-sex marriage, the mandated teaching of evolution, and now, of course, the issue of end-of-life decisions and assisted suicide. Again and again and again, they see the judiciary as power-grabbing activists, and most importantly, violating their own personal religious liberties.
Schneider also used similar language to describe the Schiavo case on March 20, the weekend Congress passed the legislation giving the federal judiciary jurisdiction over the case:
SCHNEIDER: What motivates, of course, a lot of the critics of the Florida decision has been fury really over judicial activism and the sense that the state courts in Florida have usurped their authority in making the decision that the feeding tube could be removed. Their argument is this is another case -- yet another case, in their view, the view of many conservatives, where activist judges have violated what they consider the culture of life.
Similarly, on the March 27 edition of CNN's Reliable Sources, host Howard Kurtz stated that Republicans "usually oppose judicial activism" but, like Schneider and Henry, he offered no definition of the term:
KURTZ: But I want to ask [panelist and syndicated columnist] Steve Roberts, is it fair in the coverage for journalists to note that Republicans, who pushed the bill through Congress, usually support states' rights and usually oppose judicial activism?