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As a federal judge, if you agree with your Republican appointed colleagues 95% of the time; write dry, textually based decisions, and have little (or no) rulings on abortion or homosexual marriage, you’re not exactly what would be considered an “activist judge.”

Which is probably why, despite many weeks in which to prepare possible talking points against Obama’s short list of nominees to the Supreme Court, Republicans had little more than baseless character attacks to launch at Sonia Sotomayor.

The one decision-based critique against Sotomayor heard in the less than 24-hours since her nomination was announced, revolves around her involvement with the recent controversial New Haven firefighters case. When the city’s written test to promote firefighters to the rank of captain and lieutenant failed to yield more than one minority candidate, the city recanted the test and the results as a measuring stick — to the chagrin of white firefighters who had studied hard and done well.

Those white firefighters sued, but the district court ruled against them. When they appealed the case, which had become a trial balloon for affirmative action standards, it went to a three judge panel on the 2nd circuit where one of the judges was Sotomayor.  They upheld the decision of the lower court, but at first wrote no published opinion on the case.  Later, they withdrew the order and published a short paragraph listing the reasons why the agreed with district judge’s ruling.

While Republicans will use this to try to paint her role as activist, they’re also trying to make Sotomayor seem intellectually deficient because of the brevity of the opinion. But there are some key things to remember when looking at the 2nd Circuit’s decision.

First, Sotomayor was part of a three-judge panel. That makes the decision no more “hers” than it is “theirs.” To say that Sotomayor had an activist role in the decision would be like saying a runner won a race because of his left leg.

Second, unpublished orders, like that initially given by the 2nd circuit are drafted by the presiding judge. In this case that was Rosemary Pooler, not Sotomayor. So accusing Sotomayor of a lackluster opinion in this case is non-applicable, since the published decision, or lack thereof, was not hers to write.

Hearing the right rail on Sotomayor for this decision, one might come away with the feeling that she unilaterally upheld affirmative action, and that when she did so, she was lazy and stupid about it. But the facts behind these insinuations make them patently false.

If Republicans plan to block Sotomayor’s nomination, they will be in need of better ammunition than the New Haven firefighters case.