What explains the right’s success in moving the whole spectrum of respectable opinion about judicial politics in its direction? Here’s a provisional answer.“The selection of Solicitor General Elena Kagan to be the nation’s 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 court’s conservative leader, Justice Antonin Scalia. . . .
“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 ‘living’ 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.
“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.”
If you asked Justices Scalia, Thomas, Alito and Roberts to explain what they’re doing on the bench, they’d give you their theory about why, properly understood, the activity of judging doesn’t permit them to take sides in the day’s political contests. They wouldn’t all recite exactly the same theory: Scalia, Thomas and Alito would probably each give you a slightly different account of why their originalist method of interpreting open-ended constitutional provisions keeps them from bringing their own political values into play while Roberts would probably spin a more complicated theory about how a properly judicial temperament insulates a working judge from political pressures. But, in all cases, if you took them at their word, you could come away believing that they’re doing their best to be an impartial umpire of the political game, not playing in it themselves.
Most liberals, of course, don't take them at their word. They dismiss judicial conservatives' pretenses of ideological neutrality as feeble rationalizations. They’d point to decisions like Bush v. Gore and Citizens United as evidence that, at political crunch time, conservative judges always find a way to make their allegedly apolitical judicial methodology spit out politically conservative results.
Leave aside the issue of whether conservative theories of judicial neutrality are as deficient as most liberals think they are. What's important for present purposes is that few liberals purport to have a better theory of what makes judicial conduct politically neutral (and those who have in the past, like John Hart Ely, are now read more closely by conservatives than liberals). Liberals have persuaded themselves that the notion that judges are neutral umpires in our political contests is wishful thinking at best and, at worst, cynical conservative propaganda. In virtually all of the cases that end up before the Supreme Court because established precedents don’t generate a clear result, liberal judges don’t aspire to political neutrality because they don’t think it exists.
Maybe they're right. But if that’s so, it’s not obvious why a litigant in a politically charged case standing before a judge who doesn’t share his ideological predispositions should think he’s getting a fair shake. Nor is it obvious what we’ve meant all these years when we tell ourselves that justice is blind. Justice Sotomayor and her handlers within the Obama administration, trying to undo the damage caused by her "wise Latina" speeches at her Senate confirmation hearings, couldn’t come up with an explanation of judicial impartiality that sounded much different from John Roberts’s. That's a pretty good indication of how hard it is to beat even a bad theory when you don't have a theory of your own.