McCain apparently gave a big speech today on judges and judicial activism. After Bush v. Gore (2000), you would think "judicial activism" would be a criticism impossible for Republicans to make, but apparently not.
This idea that anyone, Republican or Democrat, selects judges for their intelligence and analytical ability, and not their judicial philosophy, is ridiculous. Conservatives nominate justices that will decide cases consistent with a conservative / Federalist Society philosophy, and liberals nominate judges that will decide cases consistent with a liberal philosophy. To pretend otherwise is to both ignore reality and assume citizens are uninformed idiots.
"Activism" really is just code for "decisions I don't like." If you like the way Bush v. Gore ignored the primacy of the states in our constitutionally defined electoral system, then it was a perfectly valid decision. If you don't, it was an example of judicial activism at its worst. What matters here is whether or not you agree with the decision, and not some abstract and entirely undefinable notion of "activism."
UPDATE: Much, much more from Brian Tamanaha here. Conclusion?
Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal Justices (some of the numbers can be found here); and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican appointed judges over the past eighty years (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republican appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed judges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%).
Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That's what the numbers show.
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