The Nature of the Court’s (Rare) Liberals

Matt has an interesting response to my article about Obama’s next judicial nominee, and I respond here.   To elaborate a bit, I’m somewhat puzzled by Matt’s argument that a concern with Elana Kagan’s civil liberties record is “a quite different thing than the concern that Kagan isn’t a “real liberal” in the Marshall tradition.”   Brennan, Marshall and Douglas were much more civil libertarian than any of the Court’s current liberals, and there’s a real danger Kagan that Kagan would be more statist than any of them with the possible exception of Breyer.    And, of course, issues of social justice and criminal procedure are hardly unrelated.    Take U.S. v. Armstrong, in which the Court made it nearly impossible to prove that drug laws were applied in a discriminatory manner despite overwhelming systematic evidence.   I’m pretty confident that if Marshall was still on the Court Stevens would not have been the only dissenter, and at a minimum we should want justices who we can be confident would have voted with Stevens and not Ginsburg or Breyer in that case.

Questions of “welfare liberalism” are, at any rate, almost certain to be irrelevant to the Court for the foreseeable future — they’re unlikely to come up and there’s certainly no chance for success no matter who Obama appoints.   But on the issues the Court is likely to deal with — civil liberties, civil rights cases involving the interpretation and application of existing law, etc. — there are very big differences between a Masrshall/Brennan/Douglas-type liberal and a Breyer-type one, and Obama should take advantage of a relatively positive political context to get a justice as close to the former as possible.