My good friend and co-blogger Walter Olson is reaping the wages of apostasy with prominent placement in the New York Times and other papers for taking the position that Judge Sotomayor is not all that bad. Certainly, some conservative critics have been indiscriminate (wouldn’t we all be a lot happier if the much-criticized Diane Wood were the nominee right now?), and I do agree with Walter that conservatives need to do a better job distinguishing between the bad and the unacceptable. But I have less of a problem drawing the line and finding Sotomayor on the wrong side of it. Wally’s comment on Ricci (“Olson said the firefighter case is ‘a little bit tricky’ and, if anything, is an example of how Sotomayor ducked the chance of a lifetime to take an activist role on affirmative action.”) seems based on a misunderstanding of the posture of the case. The criticism of Sotomayor’s Ricci decision is one of judicial dishonesty: A summary affirmance throwing out a case without addressing the underlying constitutional issues is an (ultimately unsuccessful) attempt to prevent Supreme Court review by falsely making it seem that there was nothing to see here — even though Second Circuit rules forbid a summary affirmance in that sort of circumstance. I have no problem calling that sort of misuse of the judicial power “activism,” if a particularly Machiavellian type of activism. Isn’t it more likely that Sotomayor tried to avoid taking a position on a hot-button issue that could upset a nomination or confirmation hearing? And if so, can we not infer that her actual positions are so far outside the mainstream that she best not state them publicly before being confirmed to the Court?