Can anyone imagine the media buying that spin for a second after, say, Chief Justice Rehnquist passed away? Oh, Bush can't possibly make the court more conservative. "Almost certainly," the court will be more liberal now.
Barnes completely accepted Justice Stevens laying down a marker for his half of the court, and made it the newspaper's own front-page spin:
He always described it as the court's evolution more than his own -- almost all of his colleagues, he said, had been replaced by a justice with more conservative views.
The pattern is likely to continue with Stevens's successor.
Whether the court changed or Stevens changed or the political climate changed -- there's evidence of each -- the justice's decision to step down this summer will almost certainly mean a more conservative Supreme Court, even with Barack Obama in the White House and Democrats controlling Congress.
Why can't the Post spend five minutes considering if this spin might be ridiculous? Start with Ruth Bader Ginsburg replacing Byron White in 1993. White was one of two justices who voted agains the Roe v. Wade abortion decision, while Ginsburg was an energetic abortion advocate. This is where the "almosts" come flying into the article.
Is Stephen Breyer more conservative than Harry Blackmun? Conservatives would say no. Is John Roberts more conservative than William Rehnquist? That would be something, considering how the liberal media often spun Rehnquist as the "far right."
What about Sonia Sotomayor? Barnes was still spinning when he suggested that Obama picked her based on making "history," not on ideology:
It is questionable whether Obama, in the current political climate, could replace Stevens with a nominee who shares such strong opinions, even if that were the president's inclination. His nomination of Sonia Sotomayor last year made history but was not based on ideology. His appointments of lower-court judges, with a few notable exceptions, are more middle-of-the-road than the left would like.
Notice the liberal-friendly terminology again: "more middle of the road" than leftists would like, instead of "not radical enough." Barnes and the Post would not allow conservatives to assert that Bush's nominees (or for example, attorney general Alberto Gonzales) were too moderate without taking exception.
What's interesting here is how much the Barnes article seemed like plagiarism -- copying themes from an editorial published in the Post on Saturday by former Court reporter Ruth Marcus:
Barack Obama could well end his first term with a more conservative Supreme Court than the one he inherited....
Nonetheless, it's entirely possible that a more conservative court could be Obama's paradoxical legacy -- particularly if he serves only one term. The likelihood of the court shifting to the right is greater than that of its moving leftward....
But there is little in Obama's record as president to suggest that he would expend enormous capital to secure the most liberal possible justice. From the perspective of liberal groups, Obama's nominees to the lower federal courts have been, overall, disappointingly moderate.
In selecting Sotomayor, Obama acted with an eye less toward ideology than toward ethnicity; the selection does not offer much of a clue into what the president is looking for, as a matter of constitutional interpretation, in future justices. The conservative howling about Sotomayor's alleged radicalism had as little basis in reality as do the parallel assertions about Obama.
At least the Barnes article concluded with a strong counterpoint. While he acknowledged Stevens was the intellectual leader of the court's left wing, libertarian law professor Richard Epstein also vented:
"On that, Justice Stevens saw no evil, heard no evil, and did lots of evil -- he was consistently on the wrong side of those questions," Epstein said. "His belief in the benevolence of government gets everything wrong."
Liberals like Marcus and Barnes relish the liberal heyday of the Warren Court and the Burger Court. But they can't see how conservatives think recent liberal court decisions -- everything from making carbon dioxide a pollutant to granting more and more rights to foreign terrorist suspects -- might be seen as lurching to the left.
