Question for DU's Legal Scholars™ ...

It seems today's GOP talking point is that the liberals will nominate more "activist" judges to "take control" of the court.

Yes, it's more fear and more division and isn't based on reality. But, the GOP will bleat on and on despite having altered America's appeals courts to be more in line with a conservative judicial ideology than at any other time in memory and they fear losing control of the circuit courts http://rightwingwatch.org/content/federalist-society-founder-frets-theyll-lose-control-over-federal-courts">103-66.

My question is in two parts: why is that a bad thing? And which decisions would you use to support a move toward fewer "conservative" ideologues in our courts?

In other words, which cases would you point to to say, these are the reasons why the GOP are as good at justice as they are at governing? (Also, if you could please explain why you included the cases that you have.)

Thank you in advance.

http://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_School_District

This case, rebuffing "Intelligent Design" in the classroom, was decided by a GWB appointee.

At the trial level, I think the quality of the individual appointee is more important than who did the appointing. Ideology plays out more at the appellate level where the quality of the appointer matters more.

Possibly, outside of eminent domain cases.

The whole "activist" judges meme is something that can swing the pendulum in both directions, and law (especially Constitutional Law) has both a literal and an analytical application. It's silly to use words like "activist," especially considering that right-wingers want a conservative court to overturn Roe v. Wade (if that isn't activist, I don't know what is), especially when it is already clear precedent.

Activist is just more code language.

Activist = Civil Rights Movement, Women's Rights Movement, Worker's Rights Movement, Progressive Movement, etc.

I think the term "activist" is a misnomer because both sides accuse judges of being activist if the judge rules in a way that they don't like. A ruling you don't like does not mean the judge reaching the decision is an activist.

I think the whole debate over judges is between what I call "results-based judges" and "law-based judges." These are my own terms of course. And when people say "activist" I think they really mean "results-based." Results-based judges tend to decide the final outcome that they prefer, and then work backwards to try to find a rationale for ruling that way. A law-based judge tends to apply the law to whatever conclusion it reaches, whether it favors one side or the other. This isn't a binary system of course. There will always be overlap.

As an attorney, my preference is for the latter. We want consistency from the courts. If a judge is free to rule based on the RESULT that he/she personally wants, then it throws the whole legal system out of whack because we can no longer rationally asses a legal situation. The rules change based on the personal preference of the judge. We tell our jurors every day that they cannot rule based on sympathy or animosity toward one party or another. The same should be true for judges.

Personally, I can't stand when senators imply during questioning that a judge should stand up for the little guy in litigation. If the little guy is wrong on the law, he should lose. Period.

...where has the conservative side of the court made the better decision (IMO) based on the founders intent, then the most recent would the Heller vs. DC ruling. Basically, the ruling confirmed the 2nd Amendment as an individual right and protected the right to keep and and bear arms for the purposes of self-defense (but reasonable restrictions/regulations are permitted). Obama agrees with it too.

Two conservative scholars have argued that the Heller decision was "activist" but I didn't find their arguments convincing.

I, however, and not a legal scholar.