Do Republican presidents really pick "strong conservatives" for Supreme
Court nominations, while Democrats are reduced to picking moderates who
end up disappointing true liberals? Clinton's 1993 liberal nominee,
former ACLU lawyer Ruth Bader Ginsburg, would seem to rebut that view,
as would George H.W. Bush's 1990 selection of David Souter, who moved
to the left upon appointment to the dismay of conservatives.
Still, it's the theme of New York Times reporter Peter Baker's Tuesday's front-page "news analysis" of Obama's nomination of Elena Kagan to replace retiring Justice John Paul Stevens, "Liberal, in Moderation - Democrats in Struggle to Counter the Right ."
Kagan serves as solicitor general and was dean of Harvard Law School. Strongly pro-choice and pro-gay rights, her condemnation of the military's policy of "Don't Ask Don't Tell" led her to ban military recruiters from the campus. Yet the Times forwarded liberal complaints that Kagan may not be sufficiently activist to hold up the liberal wing of the Supreme Court.
A prominent photo of conservative Justice Antonin Scalia supported the liberal supposition that Scalia sways his colleagues with forceful charisma. A graphic of an academic study on the ideological history of the Supreme Court explained: "In the last quarter-century, Republican presidents have chosen strong conservatives for the Supreme Court while Democratic candidates have nominated more moderate candidates."
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.
Baker paid conservatives backhanded compliments for successfully "framing the debate" in their favor while insisting that the court is dominated by strong conservatives.
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.
Baker found two unlabeled liberals (including Kagan) to confirm his theory, then ran down a brief history of Supreme Court politics, from Antonin Scalia to Bush's failed nomination of Harriet Miers in 2005, before suggesting Clinton's Court picks, Ruth Bader Ginsburg and Stephen Breyer, were not actually capital-L liberals:
Liberals have had Scalia envy for nearly a quarter-century, only to be let down. They considered President Bill Clinton's selections of Ruth Bader Ginsburg and Stephen G. Breyer to be satisfactory but not satisfying, much like the nomination of Sonia Sotomayor last year. While Justice Ginsburg came closest to what they were looking for, given her record of advocacy for women's rights, she does not go far enough for them on capital punishment and other issues.
Tuesday's front-page personality profile of Kagan, product of a team effort of Sheryl Gay Stolberg, Katharine Seelye, and Lisa Foderaro: "Pragmatic New Yorker Chose A Careful Path to Washington ." The headline contained that dreaded word "pragmatic," often used by the Times to suggest Barack Obama is some kind of political moderate, but in this case may merely refer to Kagan's single-minded careerism. The Times at least placed Kagan in her liberal milieu in the opening paragraph in the course of piling on the flattery:
She was a product of Manhattan's liberal, intellectual Upper West Side - a smart, witty girl who was bold enough at 13 to challenge her family's rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge's robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice.
She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her Shorty. She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen's "Pride and Prejudice" every year.
She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.