Sunday, April 18, 2010

Where are the Liberal Icons on the Short List?

Mark Tushnet

There's been a curious blog-flap involving Dahlia Lithwick's column observing and joining the lament among ACS-types that none of their icons seems to appear on the Great Mentioner's lists for the Supreme Court nomination to fill Justice Stevens's seat, with responses by David Bernstein and Jonathan Adler. We can think sensibly about the question only by placing Supreme Court nominations in a wider political and historical frame.

The starting point is to observe that President Reagan's nominations of "movement conservatives" to the Supreme Court began in 1986, with Justice Scalia and the promotion of Chief Justice Rehnquist, and that the next try, with Judge Bork, met with defeat. Two observations, one simply about the dates: These nominations occurred well into President Reagan's term in office, when he had already begun to achieve some of the regime reconstruction he and his supporters sought; and, by the time of the nominations, the administration had developed its own "farm team," people who had been named to the bench by President Reagan.

President Obama is not in anything like the same position. Even assuming (as I do, but as I know others question) that President Obama seeks to become a reconstructive president, it is still early days of the process, which of course may not succeed anyway. The liberal icons Lithwick mentions have, for all practical purposes, no connection to the Obama Administration; it has no farm team of its own yet. The correct counsel to the liberal law students she describes is, "Patience, patience -- your time will come."

(By the way, what am I, chopped liver? President Obama has been characterized by his opponents as a socialist, about which see my day-after-the-election post "Mandate for Socialism," [scroll down], so why not consider the only [as far as I know] reasonably prominent scholar of constitutional law who has argued, somewhat tongue-in-cheek and for other purposes, that the Constitution should be construed as a charter for democratic socialism?)

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