As soon as the Sotomayor pick was leaked to the media this morning, I heard the talking heads on TV talk about how she is a "judicial activist." One of the myriad rightwingers offered this anectdote as proof -- she upheld the City of New Haven's decision to scrap a hiring criteria that had a disparate impact on minorities in Ricci v. DeStafano. Leave aside for the moment whether that's the right or wrong call, there is no way it can be "activist." She chose not to exercise her judicial power and refused to substitute her judgment for the judgment of city officials.
The bogus nature of the "activist" judge label has been noted many times before, but it is a drum that needs to be relentlessly beaten -- judicial activism has no definition other than a decision that conservatives disfavor.
The cable tv line has already been set -- Obama has picked a judge who relies on her "feelings" and "emotions" rather than the law to decide cases. But her controversial decisions are in affirmative action and discrimination cases, and its in this area that conservatives substitute their own personal preferences for the law as written by congress or state or local legislatures. Parents v. Seattle, in which 5 supreme court justices rejected plans established by elected school boards to ensure diversity in their school systems, was an "activist" deciision -- the right wing judges substituted their views for the views of the elected officials.
In fact, the most activist judge in the history of the United States is plainly Clarence Thomas. He recognizes no checks on his personal power. He does not respect precedent, and he votes to overturn laws passed by Congress at an incredible pace.
Yes, Judge Sotomayor will bring her common sense and empathy with her to the Supreme Court, but she will also bring a healthy respect for the law, something that judges like Clarence Thomas lack.
Plus, she's been one of my favorite federal judges since April 1995, when she used her judicial powers to bring some common sense to the fore and put an end to the baseball strike.