The Case for a Real Liberal on the Court

[Joanne98]

The pending resignation of Justice John Paul Stevens gives Barack Obama the chance to make his second appointment to the Supreme Court. It also represents what is likely to be his best chance to provide a foothold for a strong liberal presence on the Court to represent the reactionary foursome of Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito.
Here are three crucial reasons why Obama should nominate a sophisticated and tough-minded progressive along the lines of Stanford law professor Pamela Karlan, Legal Adviser of the Department of State Harold Koh, or Judge Diane Wood of the 7th Circuit Court of Appeals:

A void that needs filling
Justice Stevens has recently remarked that, "with the possible exception of Ruth Ginsburg," every judicial appointment since Stevens himself has moved the Court to the right. (Stevens himself replaced the acerbic left-libertarian William O. Douglas, one of the most liberal members in the Court's history.) Granted, that Ginsburg is an exception is more than possible: she has certainly had a more liberal record than Byron White, a dissenter in Miranda and Roe v. Wade and author of the Court's infamous (and now overruled) opinion in Bowers v. Hardwick, which concerned the criminalization of sodomy. Otherwise, though, Stevens is correct.

And while the Court's dramatic shift to the right in some measure represents electoral trends favoring the Republican Party, the random nature of the appointments process and America's anachronistic electoral system have exaggerated this shift. Conservative Republicans Democrats now dominate the Court although the Democratic Party has won the popular vote in 5 of the last 9 presidential elections. And as reflected by the fact that a moderate Republican like Stevens became the leader of the Court's liberal wing, the nation's highest tribunal completely lacks a liberal in the mold of Douglas, Thurgood Marshall, or William Brennan. Presumptive frontrunner Elena Kagan, while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal in this mold either. This would be bad for the development of progressive constitutional values.

The Conditions Will Never Be More Favorable For Obama
Given the prevailing economic conditions, the question is not whether the Democrats will lose Senate seats in the 2010 midterms, but how many. If Obama is going to put a strong liberal on the Court, the window of opportunity will probably close in November. Particularly with Ruth Bader Ginsburg's retirement almost certain to come during Obama's first term, any moderates that Obama would be interested in nominating should be saved for later, when the margin in the Senate is narrower.

http://www.prospect.org/cs/articles?article=the_case_for_a_real_liberal_on_the_court