In the New York Times, Linda Greenhouse: Resetting the Post-Scalia Supreme Court (thanks to Michael Perry for the pointer). From the introduction:
Fate has handed the justices a chance to hit reset.
If that seems an uncharitable, even tasteless observation, so be it. I’ve become increasingly concerned, as my recent columns have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution. Justice Scalia’s outsize role on and off the bench contributed to that dangerous development to an outsize degree.
Apparently the Court becomes "an agent of partisan warfare" when it decides some of its cases in a conservative direction (she goes on to criticize (of course) Shelby County (the Voting Rights Act case) and Citizens United, and well as the recent order staying the EPA's Clean Power Plan). And apparently the desired "reset" is that the Court not reach decisions like this anymore.
In reality, though, the current Court is not conservative and there is no "conservative majority." There has been a lot of talk about the need for a "compromise" candidate for the recent vacancy. But the short of it is this: the current Court is a compromise. In closely divided (5-4 or 6-3) cases, conservatives win about half the time, and liberals win about half the time. True, there's Shelby County and Citizens United (and Heller and McDonald and Hobby Lobby) but there's also Obergefell and Windsor and NFIB v. Sebelius and Arizona v. United States and Graham v. Florida and Boumediene. Neither political side is particularly happy with the way the Court has been deciding cases.
The current Court is a compromise chiefly because of one person, Justice Kennedy. So those who want a compromise candidate should want someone like Justice Kennedy — a Justice who (maddeningly for some) votes about half on one side and about half on the other. People like Linda Greenhouse, however, show no indication that this is what they want, or even that they recognize Justice Kennedy as the controlling compromise figure that he is. Shelby County and Citizens United had Kennedy in the majority; taken in context, they are part of the Kennedy compromise, not evidence of right-wing domination, because they are balanced by liberal decisions with Kennedy in the majority (Obergefell, Boumediene, etc.). Compromise doesn't necessarily mean middle ground; it may mean win some, lose some. If Greenhouse et al. are serious about compromise, they need to be able to lose some.
I doubt, though, that we could find another Justice Kennedy even if we wanted to. Few people are so strong-willed and ideologically eclectic. It would be hard to identify them in advance. (Though Judge Kozinski of the Ninth Circuit is an example). And it would be hard to confirm them if we knew about them.
So I continue to think that, if there is going to be a compromise candidate, it instead needs to be someone who take a strong position of judicial restraint. A judicial restraint candidate effects a compromise in a different way from Justice Kennedy; judicial restraint means that neither side gets to use the Court as an instrument of change in close cases (no Citizens United, no Heller, no Obergefell).
In this regard, Megan McCardle has a great Bloomberg View column, which is a nice counterpart to Greenhouse: Replacing a Justice Shouldn't Be So Excruciating. She begins:
Longtime readers will easily guess that I generally prefer the jurisprudence of Antonin Scalia to that of, say, Ruth Bader Ginsburg, and that I would prefer the next Supreme Court justice be more like him than like her. But I would also prefer to live in a country where the fate of the republic did not turn quite so sharply on which of nine unelected lawyers happens to die in a given year.
At this point, however, it cannot be otherwise; the battle we are about to enter was foreordained years ago. We can argue about who started this escalating tit-for-tat war over the court, but who cares? Both sides have been down in the trenches for some years now, and both sides fight dirty whenever they think it’s to their advantage. The stakes are too high to do otherwise.
If we want to stop this before the next Pyrrhic victory, the answer is not to whine about how awful the other party is; it’s to lower the stakes. Far too many people on every side want to do an end run around the legislation process by getting unelected judges to declare their particular concerns beyond the reach of legislators. Why bother tediously lobbying senators and representatives, when you can simply win the White House, appoint a few judges, and get them to transform your most ardent desires into untouchable rights?
Posted at 6:29 AM