Milton A. Tingling is the Judge who ruled against Bloomberg`s stupid soda ban. Emily Bazelon, shocked that any nanny state regulation should be struck down, accused Tingling of being a "conservative" judicial activist in Nanny Mayor, Meet the Nanny Judge | How conservative judicial activism took down Bloomberg’s big-soda ban., By Emily Bazelon, Slate.com, March 13, 2013
Tingling is not being activist, just following the law, and he`s not "conservative," either. Milton A. Tingling is black.
Lawblogger Walter Olson, arguing against Bazelon`s judicial activist slur, can`t quite bring himself to say that. Here`s what he says instead:
Never mind that none of the readily available biographical information about jurist Milton A. Tingling seems to justify describing him, as Bazelon does, as a “conservative judge.” (Elected in Manhattan on the Democratic line, Judge Tingling appears to have fit his judicial career comfortably into the framework of Charles-Rangel-era Harlem politics, as David Bernstein mentions at Volokh Conspiracy. In a couple of earlier notable cases, Judge Tingling did rule against police and public-order interests, but we don’t ordinarily regard that sort of civil-libertarian streak as distinctively “conservative.”) [Striking Down Bloomberg’s Soda Ban: A Matter of Law, Not Activism, Cato.org, March 18, 2013]
The case for Tingling`s civil-liberterian streak is that he "He ended a state policy of routinely shackling even nonviolent offenders on their way to and from the courthouse."
But when a black judge in New York rules in favor of prisoners, it doesn`t necessarily mean that he`s for Volokh Conspiracy-style libertarianism, it`s more likely that he`s ruling in favor of the criminal classes on ethnic grounds.
See Juvenile Offenders Shackled Illegally, Judge Rules, By Nicholas Confessore, January 26, 2010 and Tingling`s ruling: PDF.
And see my article "Right Up There With Oxygen"—Why Race Is Important, And Who It`s Important To, for the story of Judge Bruce Wright, known as "Turn `Em Loose Bruce", who explicitly said that race was why he ruled in favor of criminals—his autobiography was called Black Robes, White Justice.
My point is that it`s foolish for Bazelon to accuse a black judge of being conservative, and equally foolish for Olson to try to refute her without mentioning his color.