Maybe Because There’s No Real Difference?

So what else is new?

WASHINGTON – The selection of Solicitor General Elena Kagan to be the nation’s 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick candidates who often disappoint their liberal base.

Ms. Kagan is certainly too liberal for conservatives, who quickly criticized her nomination on Monday as a radical threat. But much like every other Democratic nominee since the 1960s, she does not fit the profile sought by the left, which hungers for a full-throated counterweight to the court’s conservative leader, Justice Antonin Scalia.

In many ways, this reflects how much the nation’s long war over the judiciary has evolved since Ms. Kagan was a child. While the American left back then used the Supreme Court to promote social change in areas like religion, race and abortion, today it looks at it more as a backstop to defend those rulings. The right, on the other hand, remains aggrieved and has waged an energetic campaign to make the court an agent of change reversing some of those holdings.

Along the way, conservatives have largely succeeded in framing the debate, putting liberals on the defensive. Sonia Sotomayor echoed conservatives in her Supreme Court confirmation hearings last year by rejecting the idea of a “living” Constitution that evolves, and even President Obama recently said the court had gone too far in the past. While conservatives have played a powerful role in influencing Republican nominations, liberals have not been as potent in Democratic selections.

In that vein, then, no Democratic nominee since Thurgood Marshall in 1967 has been the sort of outspoken liberal champion that the left craves, while Justice Scalia has been joined by three other solid conservatives in Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. By all accounts, Mr. Obama did not even consider the candidates favored most by the left, like Harold Hongju Koh, his State Department legal adviser, or Pamela S. Karlan, a Stanford Law School professor.

“Why do the conservatives always get the conservatives, but we don’t get to get the liberals?” Senator Tom Harkin, Democrat of Iowa, asked the Web site Politico recently, voicing the frustration of the left when Ms. Kagan was considered a front-runner but was not yet Mr. Obama’s selection. “What the hell is that all about?”

A 2009 study provided some fodder for Mr. Harkin’s argument that today’s conservative justices lean more to the right than the liberals lean to the left.

Richard A. Posner, a conservative appeals court judge in Chicago, and William M. Landes, his colleague from the University of Chicago law school, ranked all 43 justices from 1937 to 2006 by ideology and found that four of the five most conservative ones are on the current court. Even the moderate swing vote, Justice Kennedy, was the 10th most conservative over that period. By contrast, none of the current justices ranks among the five most liberal members, and only Justice Ginsburg is in the top 10.

4 thoughts on “Maybe Because There’s No Real Difference?

  1. Yes, it is extremely interesting that the liberal elite have a pattern of *talking* about how much they want to empower the little guy and gal, but somehow magically their fondest hope never quite comes true. Almost as if they really don’t want that to happen, at all, and have every intention of sabotaging their platform at every opportunity.

    The liberal elite aren’t really interested in doing anything which would genuinely empower the little guy, because that would mean they would have to relinquish some of their own power.

    The combination of reading your most excellent post after reading his really brings home the problem of our elitist liberal leaders. We need another choice besides Republican or Democrat. The problem isn’t Obama (I don’t know whether you still support him even though he hasn’t actually made good on any of his promises) the problem is ALL the liberals in power. 🙁

  2. I agree with much of your comment, m Andrea, but I feel Obama is definitely a strong part of the problem: He has worked actively, even aggressively to throttle any actual liberal discussion. His actions have empowered the rightward Dems and Blue Dogs, most especially the corporatists among the Dems and even corporatist tendencies, whether out of self-defense or self-aggrandizement, of even more leftish Dems.

    Single payer: “Off the table,” Obama’s personal physician from Chicago not allowed to speak on behalf of single payer, excellent statement and question by single payer advocate “left out” of one of Obama’s early health insurance reform town meetings.

    Deficit: “Everything is on the table,” including cuts to his newly passed health insurance reform profit protection plan! Want to bet on what kinds of things get cut or reduced? And what item that actually would curb, indeed cut costs immediately for health CARE, is not on the table? Why, single payer!

    SocSec: Yup, Obama teams with Peter Peterson to push the “Let Them Eat Cat Food” Commission.

    On and on it goes–and elected DC Dems are fearful of criticizing the Light Bringer, The One….

    Obama has starkly made it apparent just how easy it is to get our current Dems to aid corporations and the powerful, while pushing the least powerful back, back, back from “the table.”

  3. It’s a misleading quote, because the only successful appointments by a Democrat since Justice Thurgood Marshall have been the two Clinton appointees and Justice Sotomayor. Carter, remember, had no appointments.

    Justice Ruth Bader Ginsburg actually has good liberal credentials– she was an ACLU lawyer and one of the foremost women’s rights advocates in the ’70s and ’80s. She just hasn’t been as outspoken as a Brennan or Marshall.

    (I’m holding out hope for Kagan based mostly on the fact that she clerked for Thurgood Marshall. Justice Marshall was well known for giving lots of leeway to his clerks in the writing of opinions to the point that the Right accused him of letting his clerks do his job– I don’t think she would have been hired if she wasn’t fairly liberal.)

  4. I guess the part that bugs me is how OUR base philosophies have to be hidden in shame, like incest. The Republicans put up hard-core conservatives, and no one bats an eye.

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