Major problem here, Media Matters quotes Senator John Cornyn (R-TX) as saying:
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.
How to make this statement seem reasonable? How to make the Senator not sound as though he were advocating/justifying violence against judges who are performing their duties in a perfectly fair and respectable manner? How do we “balance” the conservatives versus the liberals and make it seem as though both sides are equally to blame? Why, that's simple! As DailyKos puts it, CNN decided to just “make shit up”.
Were any of the judges in the Terri Shiavo case “making law”? Were any of them engaged in “judicial activism”? According to 11th Circuit judge Stanley F. Birch Jr., no.
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]
So what do we hear from the commentators at CNN?
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.
Media Matters then cites several more cases where Republican charges of “judicial activism” are repeated verbatim without the commentator ever giving a clear explanation of what is meant by this phrase, without going into Karl Rove's part in popularizing the phrase and whether or not the phrase is even accurate. Plainly, on April 5, when talking about the Terri Schiavo case, it wasn't.
The problem is one of fairness versus balance. It's nice to have both, but in this case, CNN clearly felt that they could either have balance, i.e. make both sides look to be equally at fault or they could have fairness, i.e. portray the judicial system as working the way it should and Senator Cornyn as a wildly irresponsible demagogue.