Although that may be because the panel did not issue a long written opinion (which Adam Liptak at The New York Times has reported was because the judges couldn’t all agree on one), opting instead to adopt the reasoning of the district court, Armando Llorens, AKA Big Tent Democrat at TalkLeft, actually bothered to read the concurring opinions among the Second Circuit justices that decided, by a majority vote, not to re-hear the Ricci case after the panel’s ruling.

Llorens finds that in fact, the panel (including Sotomayor) was being extremely conservative (as a matter of judicial philosophy, not politics) in briefly affirming the lower court’s decision. He looks to the reasoning of Calabresi, who pointed out that the white firefighters who claimed to have been denied promotions due to race discrimination failed to make the necessary legal argument supporting that claim in the court below:

In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did.

The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives.

Cabranes, who conservatives have cited as “chastising” Sotomayor in urging the full Second Circuit court to re-hear the case, thought that the court should have considered whether New Haven had these “mixed motives,” which might have violated the civil rights law. But for the Second Circuit to have undertaken that analysis on its own, when the district court did not, would have been inappropriate — and activist. As Calabresi explained in his concurrence:

Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue.

Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided – and rehearing en banc is always a matter of choice, not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case.

The emphasis above is supplied by Llorens, who seems to be the only one to pick up on this important point. For the panel to have decided whether New Haven was motivated by a mixed motive would have been an “activist” position to take. And Sotomayor and her colleagues are no activists.

That should please those Republicans who say they don’t like judicial activism. Then again, some conservatives actually like judicial activism — when it’s promoting an ideologically conservative cause.

In fact, conservative columnist Stuart Taylor warns his compatriots in the opening of this new piece in the National Journal:

Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old “liberal activist” slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court’s conservatives are as activist as the liberals, especially on racial issues.

Taylor doesn’t think that’s a bad thing, because Taylor thinks that the court is just reflecting the fact that “Americans want racially preferential affirmative-action programs abolished.” But Taylor seems to forget that the whole point of the Supreme Court is that it’s a counter-majoritarian institution, designed to decide what’s constitutional, not what’s popular. That’s how we got rid of things like enforced racial segregation in schools, remember?

Anyway, Big Tent Democrat also points out the hypocrisy of conservatives now supporting the “judicial activism” they’ve long decried just because now it’s working in their favor.

In fact, Taylor now seems to question the very definition of the term, writing:

[I]s it judicial activism when the justices stretch the Constitution to go over the heads of the political branches — which are dominated by special-interest lobbies — not to overrule the voters but rather to give them what they want?

Wow, that’s a new one. So now the court is supposed to act to correct the distortions in the political process by using their insight as insulated Supreme Court Justices in Washington to discern the true desires of the American people?

It’s a whole new twist on “separation of powers.”

In addition to the highly flattering portrait of Holder as a young man in today’s New York Times, he’s getting praise from some of the most serious critics of the Attorney Generals under George W. Bush.

U.S. Senator Sheldon Whitehouse (D-R.I.), for example, a fierce critic of Attorney General Alberto Gonzalez for his politicization of the Justice Department and the approval of torture methods such as waterboarding during his tenure, gave Holder a ringing endorsement today.

“Our new Attorney General must restore the Justice Department’s proud tradition of independence and excellence, and insulate it from improper pressure even when it comes from the White House,” said Whitehouse. “No one will fill that role more capably than Eric Holder.”

Whitehouse, who was the U.S. Attorney for Rhode Island during the Clinton administration when Holder was deputy AG, added that he “can attest to his vast experience, his calm judgment, his legal skill, and his unswerving loyalty to the Department and its principles. I have no doubt that he will offer the independent, wise leadership necessary to repair the terrible damage of the Bush years. He has my enthusiastic support.”

Sen. Patrick Leahy (D-Vt.) has previously supported the nomination of Eric Holder, and noted that even the Senate Judiciary Committee’s top Republican, Sen. Orrin Hatch of Utah, has praised the former judge and federal prosecutor. “I respect the man and I intend to support him,” Hatch told reporters a few weeks ago.

Although Holder has faced criticism for his role signing off on President Clinton’s pardon of fugitive financier Marc Rich in 2001, Holder has acknowledged that that was a mistake, and many key senators on the judiciary committee appear to be giving him a pass on that stumble.

Holder was confirmed easily as deputy attorney general, after a two-hour confirmation hearing. Talkleft has excerpts and a transcript.