Substitute anchor T. J. Holmes brought on the CNN senior legal analyst 39 minutes into the 10 am Eastern hour, minutes after the news broke that Justice Stevens would step down after the current term of the Court. Holmes asked Toobin, "Well, you say a big opportunity [for President Obama]. You say a big opportunity to make a- put his stamp, if you will, on that Court, with now two justices he's going to be able to put on the Court. What kind of stamp [are] we talking about the President making?"
The liberal analyst answered by using a nearly identical label used to describe Sotomayor in May 2009 , minutes after the President announced her nomination to the Supreme Court: "Well, I think, much like Justice Sotomayor, his first appointment, he will seek to put a moderate Democrat on the Court." Toobin continued by labeling President Obama himself: "I think a lot of liberals hope that he picks some liberal firebrand, but I don't think President Obama is a liberal firebrand. I think if you look at Professor Obama's history- Obama of course, taught law at the University of Chicago Law School- he is not a flaming liberal on legal issues. I think he will pick someone who is on the moderate left of the Democratic Party, and- because that's who he is and that's what he believes in."
Thirty minutes later, anchor Tony Harris brought back the senior legal analyst for more commentary on the Stevens retirement. Before turning to Toobin, Harris asked fellow CNN anchor John King for his take. King noted that Republican Senator Orrin Hatch, a key member of the Senate Judiciary Committee, had commented that "whoever the President appoints must not be an activist judge and that you will hear a lot from Republicans and conservatives in the coming days as they frame the battle- somebody who will interpret the Constitution, not make law from the bench."
Harris then asked the analyst to respond to Hatch's statement, including in his question an accusation from some liberals concerning the conservative members of the Supreme Court: "Did you hear that line about not wanting someone who would be an activist judge? And I thought of you immediately because there is a pretty strong argument being made in some quarters that the more conservative members of this Court have been, in fact, activist justices."
Toobin answered by essentially agreeing with this accusation, though he extended it to the liberals on the Court as well. Though he admitted that the infamous 1973 Roe v. Wade decision, which legalized abortion, was "activist," the CNN analyst also used this label to describe two more recent decision that went in the conservative direction, including the 2007 Heller decision which struck down the District of Columbia's strict handgun ban:
TOOBIN: Well, 'activist' is one of those epithets that's thrown around when it comes to Supreme Court justices, but, as it turns out, everybody likes a certain kind of activist. Liberals like Roe v. Wade, which was a decision to overturn abortion laws in every- in many states in the union. That is certainly an activist decision, but conservatives like activism, too. They like the Heller decision two years ago that overturned gun control laws- democratically passed and democratically elected officials passed gun control laws, and in an activist decision, the Supreme Court struck that down. The Supreme Court struck down part of the McCain-Feingold law. That was certainly an activist decision. So there are liberal activists and there are conservative activists. I think that term should be retired, frankly, because it's not terribly helpful, but I don't have high hopes for it being retired.
Upholding the First and Second Amendments is "activist"? Who knew? It's not that surprising that Toobin would hold this view, as he flatly admitted during CNN's coverage of the Sotomayor hearings in July 2009  that during his law school days, "the idea that you had a Second Amendment right to a gun was considered preposterous....But the Supreme Court [in Heller]...said that...individuals have a personal right to bear arms."
-Matthew Balan is a news analyst at the Media Research Center. You can follow him on Twitter here .