A Moderate to Take O'Connor's Seat!!!

That's been the liberal rallying cry since O'Connor announced her retirement last summer. As I commented over at Are You Conservative? it occurred to me to look at how that theory has worked historically.

Before the recent shake-up, the nine Supremes were Rehnquist (Nixon), Kennedy (Reagan), Breyer (Clinton), Souter (Bush I), Stevens (Ford), Thomas (Bush), Ginsburg (Clinton), Scalia (Reagan) and O'Connor (Reagan). [Note that none of the nine were nominated by Jimmy Carter, a fact that warms the cockles of my heart].

While modern concepts of "liberal" and "conservative" don't really hold up well when considering, for example, William Douglas, who was nominated in 1939 by Franklin Roosevelt, we can more or less describe the shifts as follows:

Rehnquist:Harlan, more or less remained conservative. My short bio in Stone, Seidman et al's Constitutional Law describes him as "the intellectual leader of the 'conservative' wing, often dissenting from 'activist' decisions during the stewardship of Chief Justice Warren. He defended the values of federalism ... There was also a strong libertarian strain..." At the same time, Harlan is perhaps best known for his opinion in Brown v. Board of Education, arguably one of the most beneficial cases of judicial activism in recent history.

Kennedy:Powell, more or less stayed wishy-washy. Stone, Seidman describes him as a "balancer," and I think we know what that means in practical effect. Kennedy is all over the map as well, so the chair stayed unpredictable.

Breyer:Blackmun, liberal to liberal. Breyer is a Clinton nominee who has me convinced that a President doesn't need to take any measures whatsoever to seek moderation, because Breyer has acted as liberal as the socialist who nominated him. Blackmun was, of course, the author of Roe v. Wade.

Souter:Brennan, liberal to liberal. Brennan was a great writer, and I always enjoy his opinions even as I disagree with them. Would that any of today's Lefties were so intellectually engaging.

Stevens:Douglas, looks like a move from libertarian to coin-flipping. Stone describes Douglas opinions as "marked by a fierce committment to individual rights and distrust of government power." Stevens, by contrast, authored the Kelo decision, holding that hey, we trust the government not to get out of hand in using eminent domain, because the government knows how to use land better than you do. A step in the wrong direction, I'd say.

Thomas:Marshall, a clear move from liberal to conservative. Thurgood Marshall, the first black on the Court, acted like a slightly more rational Jesse Jackson. No liberal cause was too ridiculous for him. Thomas is, of course, so conservatice that liberals think he's a white guy in black face paint.

Ginsburg:White, a clear move from conservative-ish to hard-core liberal. White was one of two dissenters in Roe. Ginsburg, by contrast, is an enthusiastic supporter of government-funded partial-birth abortion. White wasn't always consistent, but at least he valued human life.

Scalia:Rehnquist/Burger, conservative to conservative. If this counts as a change at all, it's because Scalia is almost imperceptibly more conservative than Rehnquist, who did a wierd opinion on mandatory maternity leave for state employees.

O'Connor:Stewart, one wishy-washy poll-watcher to another. He tended to go liberal on First Amendment, conservative on Equal Protection, gave us the famous and famously useless definition of pornography ("I know it when I see it"), and wasn't afraid of internal inconsistency. Sounds like O'Connor and he would have gotten along famously.

It looks like the make-up of the Court, then, has remained remarkably static. While the Court saw one dramatic shift from left to right in Marshall to Thomas, it also saw a dramatic shift from right to left in White to Ginsburg. The only other change was in Douglas to Stevens, in which we lost a libertarian and gained the unpredictable, inconsistent justice who gave us Kelo.

None of which demonstrates that Bush should consider a retiring justice's philosopy in making appointments. As far as ideology goes, let the voice of the people put into place those who make that decision. I should also point out that as great a president as Reagan was, his Supreme Court history leaves an awful lot to be desired. He was elected to give us smaller government, lower taxes, less social engineering, and stern foreign policy. He gave us Kennedy (who found a Constitutional prohibition against Colorado democratically protecting itself from judicial activisim by homosexual groups), O'Connor (who upheld Roe v. Wade after Reagan was elected in part to get rid of it) and Scalia, the only reliable conservative among the three. With three nominations, Reagan was well-placed to give us a Court full of responsible originalists, and instead we got two of our three coin-flippers.