— Adam Smith (@asmith83) February 13, 2016
In the week before Scalia died, Dahlia Lithwick published a Slate post asserting that “Ted Cruz Won’t Prevent the Next John Roberts”:
… Speaking at a town hall meeting in Iowa last month, Cruz shared his diagnosis of what is known as conservative ideological drift: “Many of the most liberal justices in this country—Earl Warren, Bill Brennan, John Paul Stevens, David Souter, Harry Blackmun, the author of Roe v. Wade—all of those were Republican appointees. … And the reason is simple. Over and over again we keep electing Republican presidents for whom the court is not a priority. And when it comes to a nomination, they take the easy road out.”…
It’s established fact that, over their careers, more justices drift to the ideological left than to the right. Oliver Roeder at FiveThirtyEight points to the Martin-Quinn score, which measures judicial ideology across time. Data compiled since 1937 reflects the fact that most justices—up to and including one of Cruz’s favorites, Antonin Scalia—tend to move to the left over the course of their judicial careers…
Professor Michael Dorf has argued, maybe even more provocatively, that justices drift left because “constitutional law itself has a ‘liberal bias.’ ” Dorf cites a quote from Justice Benjamin Nathan Cardozo, who once wrote that a legal principle has a “tendency . . . to expand itself to the limit of its logic.”…
Andrea Mitchell actually said today "we've had balance on the Supreme Court for the last 40 years with 5 cons & 4 libs" @Arianna8927
— Steve D (@Steverocks35) February 15, 2016
21st Century GOP: The Supreme Court gets to pick presidents, the president doesn't get to pick the Supreme Court.
— Bob Schooley (@Rschooley) February 15, 2016
Today, the Washington Post found a couple of wonks to argue that “If Obama appoints Scalia’s successor, the Supreme Court will really jump leftward”:
Republicans and Democrats are already sharply divided over picking a successor to Justice Antonin Scalia. In fact, the divisions are far greater than they were, especially this early in the process, for Obama’s previous two nominees, Sonia Sotomayor and Elena Kagan. In part, this is because the nomination fight is happening in an election year. Yet there’s also another, more fundamental question at stake. The nomination of a successor to Scalia may shift politics on the Supreme Court in ways that the Sotomayor and Kagan nominations did not.
To understand why, you need a bit of background about the politics of the Supreme Court and Supreme Court nominations. In an article published by the American Journal of Political Science, Bryon Moraski and one of us (Shipan) set out a basic framework for understanding these nominations. The central idea is pretty straightforward. Presidents will try to select nominees who, if confirmed, will pull the court closer to their own preferences. But presidents can’t act alone. As Sarah Binder already has noted, presidents are constrained in their choices by the Senate, which needs to confirm any nominee.
However, they also are constrained by what political scientists would call “the distribution of ideological preferences” of the justices themselves. In more everyday language, we might think of the nine justices as being arrayed on a left-right scale, with the most liberal justice at the leftmost point, and the most conservative justice at the rightmost point. When the justices vote according to their ideological positions, then the median justice – the one at the middle – is the one who is most influential. If he or she decides to agree with colleagues to the left, then he or she gives a victory to the left. When he or she votes with colleagues on the right, then they win. The median justice is the swing voter….
What Moraski and Shipan first pointed out was that even if a president was not constrained by the Senate, he or she could move the median only as far as the next closest justice. That is, all he or she can do is shift the swing vote one justice to the left, or one justice to the right. In the current context, if Obama could get a nominee approved who shared his ideology, then the new median would be Kagan. Obama might want to move the xourt even further to the left, but he just can’t do it. Again, even if he could nominate and somehow get approved a strongly liberal nominee, the median (at least in the short term) could move over only one position to the left – that is, to Kagan, the first justice to the left of the current median…
There is no tradition of leaving a Supreme Court seat vacant because of an impending presidential election https://t.co/Qj57VS8Om0
— SCOTUSblog (@SCOTUSblog) February 14, 2016
Conservatives will be happy to make a new tradition. Because they're conservatives. Wait… https://t.co/P76K3vSFA9
— Daniel Drezner (@dandrezner) February 14, 2016