Conservative like activist judges — the conservative kind
Contrary to much "liberal activist judge" mythology, "ninety-four of the 162 active judges now on the U.S. Court of Appeals were chosen by Republican presidents." And Republican appointees have a clear majority on 10 of the 13 circuit courts.
That said, there’s still a certain logic to all these complaints. Most of the Republican judges now on the circuit courts, after all, are merely conservative — by and large exerting a good deal of judicial restraint. By contrast, as Jeffrey Rosen nicely described over the weekend, a growing number of conservatives — including and up to Dick Cheney in the White House — actually want to place strong conservative activists on the court, people who, contrary to "mere conservatives" like Antonin Scalia, would be actively willing to overturn law after law in order to get legal doctrine back to where it was before the New Deal. The sort of judges who will strike down labor and environmental protections, scale back minimum-wage and maximum-hour laws, and take away Congress’ ability to regulate commerce.