This low-quality article in the Washington Post reports that, when it comes to the Supreme Court, “Some Legal Activists Have Hearts Set on ‘True Liberal.'” Imagine that.
The article, by Robert Barnes and Kevin Merida, is an uncritical presentation of the leftist legal community’s dogma regarding the Supreme Court and its politics. The presentation is uncritical because, by all appearances, Barnes and Merida agree with that dogma. Thus, they state that “liberal legal activists have consistently lagged behind conservatives in convincing their partisans that the court should be a voting issue.” Barnes and Merida cite no evidence for this view, which seems to be a function of nothing more than the normal tendency of partisans to believe that their opponents are always better mobilized.
Barnes and Merida also quote leftist professor Geoffrey Stone’s view that the current Supreme Court has no “true liberal” on it. In Stone’s view “what we call liberals on this court are moderates or moderate liberals, if you want to get refined about it.” But Stone provides no defense of the view that, say, Justice Ginsburg is other than a liberal, and it would not have been difficult for Barnes and Merida to have found a law professor who disagreed with Stone on this point. Apparently, Barnes and Merida weren’t interested in doing so.
The most amusing part of their piece is the voice they give to the liberal lament that liberals don’t have “their own Antonin Scalia.” Here, finally, Barnes, Merida, and the leftist legal activists have a point. But I doubt there could be a liberal Justice Scalia. The distinctive clarity and bite of his opinions seem inextricably linked to the content of his positions. Leftist law professors recognize and resent the fact that Scalia is out-arguing the court’s liberals and believe that they, or those they follow, could do better. But Justice Breyer, a brilliant man, presumably believes that he’s at least holding his own, and there is no reason to believe that this or that leftist professor or lower court judge would fare any better than Breyer.
Even if there were a Scalia of the left out there, it seems unlikely that, if elected, Barack Obama would be inclined (or well-advised) to nominate him or her. Such a figure, if he or she has a track record, would cause Obama to take too much heat. Barnes and Merida quote Lani Guinier to the effect that a Supreme Court Justice is a teacher in a national seminar on the Constitution. But Guinier is a case study in how hazardous it can be for a president to nominate someone who thinks that way for any high profile legal position.
Obama is probably too shrewd to make this kind of mistake. If elected he’ll be looking to his Supreme Court nominees for reliably liberal votes, not a national seminar. Teaching seminars will be Obama’s job.