New York Times: Elena Kagan뭩 selection for Supreme Court leaves left longing for a liberal

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New York Times: Elena Kagan뭩 selection for Supreme Court leaves left longing for a liberal

Kagan뭩 selection leaves left longing for a liberal
Dems say conservatives pick activists while their justices guard status quo
Analysis
By Peter Baker
May 11, 2010

WASHINGTON - The selection of Solicitor General Elena Kagan to be the nation뭩 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 court뭩 conservative leader, Justice Antonin Scalia.

In many ways, this reflects how much the nation뭩 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.

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 뱇iving� 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.

No liberal nominee since Marshall

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.

밯hy do the conservatives always get the conservatives, but we don뭪 get to get the liberals?� Senator Tom Harkin, Democrat of Iowa, asked the Web site Politico recently, voicing the frustration of the left when Ms. Kagan was considered a front-runner but was not yet Mr. Obama뭩 selection. 밯hat the hell is that all about?�

A 2009 study provided some fodder for Mr. Harkin뭩 argument that today뭩 conservative justices lean more to the right than the liberals lean to the left.

Richard A. Posner, a conservative appeals court judge in Chicago, and William M. Landes, his colleague from the University of Chicago law school, ranked all 43 justices from 1937 to 2006 by ideology and found that four of the five most conservative ones are on the current court. Even the moderate swing vote, Justice Kennedy, was the 10th most conservative over that period. By contrast, none of the current justices ranks among the five most liberal members, and only Justice Ginsburg is in the top 10.

Please read the full article at:

http://www.msnbc.msn.com/id/37079241/ns/politics-the_new_york_times/