The NYT points out the real shift occurred when Bush/Cheney installed the far-right ideologue Samuel Alito onto the Court, replacing the centrist Sandra Day O’Connor, who had become more liberal over the course of her term. The conservative Anthony Kennedy suddenly became the “centrist” which is not a reflection of his ideology—he’s ranked as among the top ten most conservative justices since 1937; instead, the court has shifted so far to the right that he’s the new “centre”.
Which makes the ideological battles over nominees all the more absurd. As I said at the time Justice Sonia Sotomayor was confirmed, and it’s equally true now with Elena Kagan,
“The thing that bothered me the most, however, is the attacks from Republicans who bizarrely claimed that Sotomayor is a liberal when she's clearly—obviously—a moderate. Here’s why this bothered me: What the hell is wrong with having a liberal on the Court? Basically, the rightwing is saying that having rightwingers on the bench is good and proper, but there can be no liberals. Excuse me? How is that in any way democratic, let alone fair? The majority of the Court is more or less conservative (and four are hard-core rightwing), so why shouldn’t liberals get a Justice, too—especially when the retiring justice is from the more or less liberal group of Justices?”
And that gets at a larger problem, the reluctance of the Obama Administration to appoint a real liberal to the Court. As Laffy put it:
“Playing it down the middle is the president’s trademark, but when you have a conservative court, adding progressive justices would merely compensate, not swing the court to the left. ‘Safe, middle of the road’ judges will perpetuate the status quo, already further right now that Justice Stevens has retired… and the status quo is, and will remain, ‘the most conservative Supreme Court in living memory’.”
I completely agree. And if, as many expect, President Obama gets to appoint one more Associate Justice in his first term, then I hope he picks a real liberal to add some ideological balance to the Court. The Court will still be extremely conservative, and probably will remain so for a decade or more at least, but a passionate liberal can ensure that all sides are heard. And, perhaps more importantly, it would prevent the Court from being a right-wing rubber stamp for the Republicans if they regain Congress and the White House at some point.