I see Stuart Taylor is again trying to sell the “Alito is a harmless moderate” line with a lot of diversion and pretty much no evidence. I’ll probably have more on that latter. The punchline, however, is something we’re hearing a lot:
It should also explore liberal analysts’ concerns that in split decisions, Alito has taken the conservative side so consistently as to suggest ideological rigidity. The Senate should figure out whether Alito has been more consistently conservative than, say, Justice Ruth Bader Ginsburg has been consistently liberal.
We also see this in John Manning’s (far better) op-ed, which I was planning to discuss but Balkin said pretty much everything I wanted to say. (My short version would be that Manning is right that “balance” is impossible and the President is perfectly within his rights to try to change the balance, but the next point that therefore only qualifications matter is a non-sequitur. In fact, the President takes constitutional philosophy and outcomes into account–indeed, this is what constitutes a shift in balance–and the Senate can too.) But you hear this a lot: if the GOP was willing to let a radical liberal like Ginsburg onto the Court, then Democrats are therefore obliged to let Alito on the Court.
The problem is, the idea that Ginsburg is an ultraliberal is just false; she’s far less liberal than Brennan or Douglas or Marshall. From Baum’s The Supreme Court, here’s the Segal/Spaeth data on liberal voting from the 2000-2001 terms on the Court:
1. Stevens 64.2
2T. Souter 60.2
2T. Ginsburg 60.2
4. Breyer 57.9
5. O’Connor 42.6
6. Kennedy 39.2
7. Rehnquist 31.3
8. Thomas 30.7
9. Scalia 27.3
As it happens, Stevens–the most liberal member of the current court–served for a fair period of time with Brennan and Marshall. On the Burger Court, however, Stevens generally ranked 3rd or 4th in liberalism; always behind the first two, sometimes behind Blackmun, and on federalism behind White and Powell as well. And often the differences were huge; Stevens, like today, was generally between 50%-70% (none higher than 69.9%) depending on the category, Marshall and Brennan were in the high 80s or low 90s in criminal procedure, civil rights, and the 1st Amendment. (And, of course, nobody thinks Stevens was nearly as liberal as Brennan or Marshall; this is hardly controversial.) And yet Ginsburg is no more liberal than Stevens. [All data from SCAM I, 250-1.)
And, of course, the Republicans knew this too. She had a moderate record on the appeals court–unlike Alito–and that’s why Hatch recommended her. The GOP expected her to be a solid but moderate liberal, upholding existing precedents but not boldly creating new rights in the manner of a Brennan or Marshall, and that’s exactly what she’s turned out to be. And this is what the argument that if-Ginsburg-then-Alito leaves out; Hatch proposed Ginsburg, while Reid said that the Dems wouldn’t approve Alito. There’s just no analogy there.
So, in other words, Taylor’s argument is just more question-begging. The analogy to Ginsburg simply assumes that he’s a moderate-to-solid conservative, in between O’Connor and Scalia (like Roberts, who was easily confirmed) the way Ginsburg is between O’Connor and Brennan. Which brings us back to the point that Taylor still doesn’t have any evidence that Alito is more moderate than Scalia, and in fact since Alito doesn’t have a libertarian streak on criminal procedure there’s if anything more evidence that he’s more conservative than Scalia. The fact that the Republicans approved Ginsburg requires Dems to do exactly nothing about Alito.