Besides, a judge who overturns Bloomberg’s soft drink ban MUST be a conservative, because we all know conservatives are fat and eat meat and stuff and don’t want people to be healthy so they don’t have to pay their fair share for Obamacare, right?
The judge who struck down New York Mayor Bloomberg’s giant soft drink ban, as controversial an example of aggressive government paternalism over personal choice as one can find, has a pretty clear record of supporting traditional liberal positions, like same-sex marriage, and appears to be a Democrat. He was elected in ultra-liberal Manhattan, and supported by Charlie Rangel’s organization.
Nonetheless, writing about the decision in Slate, legal analyst Emily Bazelon wrote this…
“Judge Tingling walked on by all of that in striking down the Department of Health order. And of course he’s not the first conservative judge to find that activism from the bench is awfully appealing when it allows you to sweep away laws you don’t like.”
How does she know Tingling is a conservative judge? Why, because he ruled against a prohibition that she, a liberal, happens to like. Just consider what she is doing in this statement:
- She is assuming that any judicial opinion she thinks is bad can only come from a conservative, thus embracing ideological bigotry: if it’s bad, it must be conservative, and if it’s conservative, it must be bad. She is also using the “No True Scotsman” fallacy. No liberal judge would make such a bad ruling, Tingling, a liberal Democrat, made the ruling, so he must be conservative despite all evidence to the contrary.
- She charges a liberal judge with hypocrisy for engaging in “judicial activism” by labeling him a conservative judge, since conservative judges typically oppose judicial activism, rather than use the fact of his judicial activism (as she sees it) to come to the more consistent conclusion that he’s a liberal judge.
- To compound the mess, the decision is probably not judicial activism at all.
- She implicitly rejects the idea that judges make rulings on the law, rather than according to ideological alignment, despite the fact that judges are supposed to put fairness and statutory language above their own philosophical leanings. In fact, Tingling’s ruling is an excellent example of judicial integrity, since he is a liberal judge ruling against a typical nanny state measure enacted by a liberal mayor. Bazelon, however, represents it as an ideological ruling by describing Tingling as a conservative, thus transforming the decision as an ideologically-based, hypocritical ruling by a conservative judge against a liberal measure.
- Thus, in order to attack conservative judges as hypocritical and ideologically biased for a ruling no conservative was involved in, she refused to give deserved credit and praise to a liberal judge who ruled according to the law rather than his own biases!
Of course, all of this amounts to amateurish and sloppy reporting, poor analysis, and the dissemination of misinformation….and all to take a generic slap at conservatives, because, well, Emily really doesn’t like them, and doesn’t have the patience to wait until they actually do something.
____________________________
Pointer: Volokh
Sources: Slate, Concurring Opinions
Graphic: Business Strategy
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at jamproethics@verizon.net.
Ethics Alarms 
My mind is made up. Don’t confuse me with the facts.
<blockquoteShe implicitly rejects the idea that judges make rulings on the law, rather than according to ideological alignment, despite the fact that judges are supposed to put fairness and statutory language above their own philosophical leanings. In fact, Tingling’s ruling is an excellent example of judicial integrity, since he is a liberal judge ruling against a typical nanny state measure enacted by a liberal mayor. Bazelon, however, represents it as an ideological ruling by describing Tingling as a conservative, thus transforming the decision as an ideologically-based, hypocritical ruling by a conservative judge against a liberal measure.
I wonder what she would think of Judge Chester Straub, who was appointed to the Second Circuit by President Bill Clinton. See Windsor v. United States, 699 F.3d 169 at 188-211 (2nd Cir. 2012) (Straub, J., concurring in part and dissenting in part) (dissenting from opinion that DOMA is unconstitutional as applied to plaintiff)
Or California Supreme Court Justice Stanley Mosk? See Bakke v. Regents of the University of California, 18 Cal. 3d 34 (Cal. Sup,. Ct. 1976) (striking down a college affirmative action program) aff’d sub nom Regents of the University of California v. Bakke, 438 U.S. 265 (1978) and American Academy of Pediatrics v. Lungren, 16 Cal.4th 307 at 384-410 (1997) (Mosk, J., dissenting) (dissenting from opinion striking down abortion parental notification law)
Here is a comment posted on the source article with which I fully concur.
That column makes the point, Michael. I might add that few things leave me with such a heavy feeling of hypocrisy than when a liberal activist accuses a judge of “activism”. If it wasn’t for that, modern liberals would be confined to hippie communes along the Mexican border.
Don’t tease me with such sweet fantasies…
I’ve seen ’em!
The funniest part of those two paragraphs of stupid?
The law was overturned because the agency lacked the authority…
Here’s one for you:
http://www.boston.com/lifestyle/blogs/bostonspirit/2012/12/local_leaders_on_why_michelle.html?comments=all#aComments
There are two sources of opposition.
The first, medical ignorance – people who don’t think the treatment is necessary because, well, they don’t know anything about it they just know that it isn’t, no matter what the medical profession says. It’s common sense, like the world being flat.
The second, because many don’t believe prisoners are entitled to any medical treatment, regardless of what the constitution might say. They demand that the 8th amendment continue to be ignored in practice in this case, as it has been in the past.
The judge is a Reagan appointee, known for his conservatism. Yet he’s been called everything from a Leftist Activist to an outright Marxist by the majority of the commentariat.
Even on left-leaning sites.
http://www.huffingtonpost.com/2012/09/29/michelle-kosilek-ruling-transgender_n_1924424.html
Thanks for this: a terrific example of the situation I wrote about, with the poles reversed. I’ll try to cover it in a main post if I can. The issue is important. the public is constantly told that judges make decisions according to a partisan template and agenda, like so many elected officials. Some do, but the good ones don’t—the ones who deserve to be judges.
People disagree with the ruling because they do not believe that gender reassignment surgery is therapeutic, but rather elective.
Let us take the example of breast enhancement surgery. Had the surgery at issue been a breast enhancement done for a female prisoner, it would be mandated under the Eighth Amendment if the purpose was to, for example, restore breasts that were previously removed.
I doubt it would be required just to make the prisoner feel better.
The issue isn’t whether it’s a good or a bad ruling. The issue is that it is not a “conservative” or a “liberal” ruling. It’s a legal ruling.
I know why they disagree with the the ruling—it’s still irrelevant to the post.
In what way is the reassignment “medically necessary”? How quickly will this person die, should they not receive the surgery?
If they won’t die, it isn’t necessary.
And it isn’t that they deserve NO care, they don’t deserve excess care – they should get just enough to keep them not dead, and their teeth mostly intact. After that, they get to shell out the money themselves.
In what way is [splinting a broken arm] “medically necessary”? How quickly will this person die, should they not receive the surgery?
If they won’t die, it isn’t necessary.
And it isn’t that they deserve NO care, they don’t deserve excess care – they should get just enough to keep them not dead, and their teeth mostly intact. After that, they get to shell out the money themselves.
Splinting is to fix an injury, and return the body to a previous state. Unless the prisoner STARTED OUT as a woman, this isn’t FIXING anything.
And you CAN die from a broken bone – quite easily, in fact. Not being turned into a woman is a lesser risk, I believe.
I followed your template. Fixes for nonlethal conditions aren’t allowed. Your attempt to change the rules now is a big blinking sign reading *I have no principles. I just make stuff up*.
So we should let female prisoners get breast implants because they would feel better about themselves, right?
Breast implants=Cosmetic, non-essential surgery.
Gender reassignment=arguably essential surgery where a genuine gender identity/physical misalignment exists.
I can accept the argument that only life-saving surgery should be available to prisoners—no knee surgery, no plastic surgery on deforming scars, that sort of thing. But minimizing the seriousness of gender reassignment surgery isn’t the fair argument.
I didn’t suggest such. I pointed out that your rule was arbitrary and simplistic. Your pronouncement was based on your desired conclusion, not on the actual situation.
It isn’t even excess care. It’s medically unnecessary elective cosmetic surgery.
I think Zoe covered that case already with her comment on medical ignorance.