The prospect of a liberal slot on the court being filled by a liberal president has some liberals dreaming big—as was evidenced in a piece last weekend, by Adam Liptak, asking whether President Obama should appoint someone "who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan Jr. or Justice Thurgood Marshall?"...[So Lithwick's read of Obama is that he's a centrist, and he's not going to give us The Scalia of the Left/The Resurrection of William O. Douglas.
[Liberals tend to grouse] that there is no left-wing counterpart for Justice Antonin Scalia.... [The complain that the] court's liberals are just not very persuasive.... [that they] lack a revelatory constitutional vision.... [and that they lack fervor].....
If, then, we're totting up all the qualities the current court's liberals ostensibly lack, we'd need to blend boldness with passion and persuasiveness with volume and then hope the next candidate also comes with some sort of just-add-water Sweeping Constitutional Vision kit....
My own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court, even if she did exist, and that we need to yank our wish list out from under the enormous shadow cast by Antonin Scalia, William Brennan, and Thurgood Marshall, anyhow. Yes, they are forces of nature, and the court is a better place for having each of them. But pining for a liberal Scalia isn't the way to push the Roberts Court into the future. The day of the lions may be ending at the court. And that might not be a terrible thing.
Now, here's Lithwick just about exactly one year ago, talking about what sort of Supreme Court Justice John McCain would be likely to inflict on us:
[The conservative legal movement is] a multifaceted organizational and institutional structure that has become the only game in town. Despite some missteps, today's conservative legal movement has become as powerful as it is through coordinated and careful effort.I wrote at the time that that didn't make sense to me:
The practical upshot is that when McCain constructs his legal team, he will have just one institutional framework from which to pick—the same movement conservatives that produced Roberts and Alito.... [And] McCain has already agreed to fall in line....
McCain has embraced the generality of a conservative judge, but within that category, there will always be an array of judicial minds. Once he is elected, he'll be choosing from that array, and it remains fair to wonder whether he will pick more flexible pragmatic judges like O'Connor and Kennedy.What's striking me now is the difference between the way Lithwick thought about Obama and the way she thought about McCain. What can account for it other than a preference that she has for a strong liberal judge? Why is it that Obama is seen as having centrist, pragmatic inclinations and McCain was not? I can't help thinking Lithwick is running interference for some very liberal nominee to come. She has a strategy to portray that person as actually a moderate, someone to whom fair-minded conservatives should not object. But when faced with McCain, back when the presidency was still up for grabs, she had reason to scare readers that McCain would appoint a hardcore conservative.
In fact, I think that is the line he probably perceived between Roberts and Alito... [McCain had seemed to express a preference for Roberts over Alito.] I think people at the time did see a distinction like that, and even if McCain doesn't have a deep, lawyerly knowledge of law, he very well may have heard talk that Alito was more of an ideological conservative and Roberts had a instinct toward moderation and consensus.
You know, it's not just Dahlia Lithwick. This is the stock argument that you hear again and again from people who want the Supreme Court to move to the left: liberal = moderate, conservative = extreme. I'm just writing this up as a blog post because I happened to run across that old McCain item on the same day I read the Obama thing. Usually, I just sigh and think, yeah, that again.
By the way, did you know there have only been 2 Supreme Court Justices named Henry? The first was Henry Baldwin (1780 - 1844), appointed by Andrew Jackson:
Baldwin found himself at odds with the dominant personalities on the Court he joined, especially Joseph Story. Within a year of his appointment, Baldwin expressed the wish to resign. He missed an entire Term due to illness; and, a mental condition progressively disabled him....Well, that didn't go very well!
Baldwin wrote almost nothing of interest for the Court on the Constitution...
He appeared to suffer from occasional bouts of mental illness that made him obstreperous and even offensive to others. He did not get along with his fellow justices; and he was violent and ungovernable on the bench in his last years.
The other Henry was Henry Billings Brown (1836 - 1913), appointed by Benjamin Harrison:
Brown authored in excess of 450 majority opinions during his years on the Court....Ah, my... Things did not go well for the Justice Henrys.
Brown will probably be forever marked by a single opinion he authored for a majority: Plessy v. Ferguson....