Myths and falsehoods surrounding Supreme Court vacancies

From media matters:

With the retirement of Supreme Court Justice John Paul Stevens, Media Matters revisits some common myths and falsehoods pushed by right-wing media in their effort to undermine the confirmation process and attack anyone President Obama nominates to replace Stevens.

MYTH: Liberals -- but not conservatives -- engage in "judicial activism"

MYTH: Diversifying the court would be inconsistent with nominating justices based on merit

MYTH: "Empathy" conflicts with a nominee's commitment to the law and demonstrates "liberal activism"

MYTH: Obama said it was a "tragedy" that the Supreme Court had not pursued the "redistribution of wealth"

MYTH: The GOP has taken a consistent position on the appropriateness of judicial filibusters

MYTH: Liberals -- but not conservatives -- engage in "judicial activism"

Media frequently suggest that liberal judges, but not conservative judges, engage in "judicial activism" -- which media figures often characterize as legislating from the bench. This myth is undermined by studies showing that judges labeled "conservative" are far more likely to overturn legislation passed by Congress and regulations put forth by the White House.

Study: Conservative judges more likely to strike down congressional statutes. A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed 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. Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress.

Study: Conservative judges more likely to strike down executive regulations. A 2007 study published by University of Chicago law professor Thomas J. Miles and Cass R. Sunstein -- who was then Miles' colleague at the university but has since joined the Obama White House -- 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 the most likely to engage in "judicial activism" while the "liberal" justices were most likely to exercise "judicial restraint."

MYTH: Diversifying the court would be inconsistent with nominating justices based on merit

Media figures have suggested that a deliberate effort to diversify the court by nominating a woman and/or a member of a racial or ethnic minority would mean that any nominee was not chosen based on merit. Such arguments ignore a different explanation -- that the over-representation of white men itself illustrates that qualified women and minorities have been consistently excluded from the court.

GOP Sen. Gregg: "[Y]ou can certainly find a lot of extraordinarily talented people who are -- happen to be women also." Even Republican Senator Judd Gregg (NH) acknowledged this likelihood. On the May 4, 2009, edition of MSNBC Live, for instance, host Andrea Mitchell asked Gregg whether, "all things being equal," Obama should nominate a woman. Gregg replied, "I think that in the legal system which we have today, we have a huge amount of talent out there. And you can -- if you feel that the balance on the court should be addressed relative to women being on the court, which I happen to think is a good idea, you can certainly find a lot of extraordinarily talented people who are -- happen to be women also. And that would probably be good."

CNN's Toobin: "Almost half the lawyers in the United States are women." When CNN host Lou Dobbs asked why all of the potential nominees that CNN's Jeffrey Toobin listed were women, Toobin said that "[m]ore than half the law students in the United States are now women. Almost half the lawyers in the United States are women. There's only one out of nine justices on the Supreme Court who are women. I think President Obama, who believes in diversity, thinks it's time to even out the balance a little bit more." Nonetheless, Dobbs responded by asking: "Are you talking about the death of meritocracy on the court? ... Wouldn't it be strange that this court ruled against affirmative action, racial quotas, and ruled in favor of a truly sex -- gender- and race-blind society that then Justice Souter be replaced on the basis of group and identity politics? ... Wouldn't that be captivatingly ironic?" Toobin then explained that "Obama would say diversity is not opposite of meritocracy. Those are very qualified candidates."

MYTH: "Empathy" conflicts with a nominee's commitment to the law and demonstrates "liberal activism"

Media frequently suggested that "empathy" in a nominee would conflict with that nominee's commitment to follow the law and demonstrates "judicial activism." This myth is refuted by the frequent invocation of empathy as a desirable quality in judges by conservatives, and by Obama's previous statement that judges should pursue both qualities.

Obama made clear that he thinks judges can -- and should -- demonstrate both a commitment to law and empathy. Media have fixated on a statement Obama made that "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes" to push the notion that this statement "aggravates those who believe justices should follow the Constitution and legislative intent." But in the very next sentence Obama stated: "I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role." Obama added, "I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time."

Conservative justices have positively cited personal experience during their confirmation hearings. Conservative Supreme Court Justices Clarence Thomas and Samuel Alito each cited his personal experience as a positive attribute during confirmation hearings:

• Thomas: "I can walk in the shoes of the people who are affected by what the court does." Responding to Sen. Herb Kohl's (D-WI) question during his confirmation hearings in 1991 about why he wanted to be a Supreme Court justice, Thomas stated in part: "I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, 'But for the grace of God there go I.' So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes and I could bring something different to the Court."

• Alito: "I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender." During his 2006 confirmation hearings, Supreme Court Justice Samuel Alito highlighted his compassion for people involved in immigration and discrimination cases and discussed the importance of his personal experience. Alito stated: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

Conservatives have repeatedly expressed support for empathy in judicial nominees. Conservatives including President George H.W. Bush, Sen. Kit Bond (R-MO), and former Bush administration lawyer John Yoo have touted Thomas' "empathy," "compassion," and personal experience as qualifications.

MYTH: Obama said it was a "tragedy" that the Supreme Court had not pursued the "redistribution of wealth"

Led by the Drudge Report, media conservatives distorted comments Obama made during a 2001 interview to falsely claim that Obama said it was a "tragedy" that the Supreme Court has not pursued wealth redistribution. The evidence they cited completely undermined their claim: Obama actually said that a tragedy of the civil rights movement was that the movement became focused on change through the courts at the expense of change through political and community organizing.

Obama: Tragedy that "the civil rights movements became so court-focused." During the 2001 interview on Chicago Public Radio station WBEZ cited by conservatives, Obama did not say it is a "tragedy" that the Supreme Court has not pursued wealth redistribution. The "tragedy" Obama identified was that the civil rights movement "became so court-focused" in trying to effect political and economic justice. Obama stated:

And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change.

Obama: "[T]he court's just not very good at" redistributive change because "it's hard to legitimize opinions from the court in that regard." During the same 2001 interview, Obama stated: "You know, maybe I'm showing my bias here as a legislator as well as a law professor, but, you know, I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way." He later added:

You know, the court's just not very good at it, and politically, it's just -- it's very hard to legitimize opinions from the court in that regard. So, I mean, I think that, although, you can craft theoretical justifications for it legally -- you know, I think you can, any three of us sitting here could come up with a rationale for bringing about economic change through the courts -- I think that, as a practical matter, our institutions just are poorly equipped to do it.

MYTH: The GOP has taken a consistent position on the appropriateness of judicial filibusters

Media have advanced the myth that Senate Republicans were consistent in threatening to filibuster Obama's judicial nominees under certain circumstances by omitting the fact that a number of these same Republican senators previously took the position that filibusters of President Bush's nominees were unconstitutional or otherwise ran counter to constitutional principles.

Conservatives call judicial filibusters unconstitutional. Republican senators, including Sens. Orrin Hatch (UT), Sam Brownback (KS), Chuck Grassley (IA), John Cornyn (TX), Jeff Sessions (AL), James Inhofe (OK), Tom Coburn (OK), and Pat Roberts (KS), have previously said or suggested that filibustering judicial nominees is unconstitutional. Numerous conservative media figures also denounced judicial filibusters of Bush's nominees -- with Rush Limbaugh, Sean Hannity, Mark Levin, and Donald Lambro all asserting that Democrats' use of such filibusters was unconstitutional.