The Time to Appoint Liberals is Now

Dahlia Lithwick makes the case for a liberal of the Brennan/Marshall variety (although I suppose the best analogy to Scalia would be William O. Douglas.) Unfortunately, I think she’s also convincing when she says that “[m]y own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court.” I think this point from the Adam Liptak piece she cites deserves emphasis:

Justice John Paul Stevens, the leader of the Supreme Court’s liberal wing, likes to say that he has not moved to the left since he was appointed to the court by President Gerald R. Ford in 1975. It is the court, Justice Stevens says, that has moved to the right.

“Every judge who’s been appointed to the court since Lewis Powell” in 1971 “has been more conservative than his or her predecessor,” Justice Stevens said in a 2007 interview. He added that Justice Ruth Bader Ginsburg might have been the sole exception but included himself as one of those 11 ratchets to the right.

[..]

According to a study last year by William M. Landes, who teaches law and economics at the University of Chicago, and Judge Richard A. Posner of the federal appeals court there, four of the five most conservative justices to serve on the court since 1937, of a total of 43, are on the court right now: Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. The fifth was Chief Justice William H. Rehnquist, whom Chief Justice Roberts replaced in 2005.

The study took into account the votes in divided cases on ideologically charged issues like criminal procedure, civil rights and the First Amendment. Justice Thomas, the most conservative justice in the study, voted for the conservative position in those cases 82 percent of the time. Justice Marshall, the only other African-American to serve on the court, was by this measure the most liberal, voting for the conservative side 21 percent of the time.

The study also reinforced Justice Stevens’s caveat, counting Justice Ginsburg as more liberal than the justice she replaced, Justice Byron R. White. But Justice Ginsburg, whom the study identifies as the most liberal current justice, barely makes the Top 10 in the full tally.

There’s a tendency to think of what can be loosely called the “liberal” and “conservative” wings of the Court as being roughly symmetrical. But that just isn’t the case; a liberal wing whose anchors are a Gerald Ford Republican and a someone whose most common voting partner as a Court of Appeals judge was Ken Starr are the liberal equivalents of Scalia and Alito and Thomas, but they just aren’t. This represents what may be the best opportunity to start to balance the scales for a long time, and Obama should take it.

Meanwhile, for your Friday comedy fix, Ann Althouse says that “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.” Given that Lithwick is being completely explicit about the distinction between more and less moderate liberals, this makes no sense. But you may remember Althouse’s (necessarily evidence-free) op-ed arguing that Sam Alito was a moderate to whom fair-minded liberals could not object. I believe this is called “projection.”

[X-Posted to TAPPED.]