Kagan Nomination Leaves Some Longing on the Left

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The ground began shifting on Supreme Court politics in President Ronald Reagan’s second term when conservatives pushed for candidates who would reverse what they saw as the excesses of the court under Chief Justices Earl Warren and Warren E. Burger.

In 1986, Mr. Reagan appointed Justice Scalia and elevated Justice William H. Rehnquist to replace Chief Justice Burger. But Mr. Reagan’s nomination of Robert H. Bork a year later was rejected by the Senate after an ideological clash. Only after that vote and another nominee withdrew did Mr. Reagan finally pick Anthony M. Kennedy, a more moderate conservative.

Leery of another such showdown, President George Bush picked a so-called stealth candidate in David H. Souter in 1990, a move conservatives considered a betrayal after he turned out to be more liberal than expected. A year later, Mr. Bush appointed Justice Thomas, who was a favorite of the right, as were the second President Bush’s choices, Chief Justice Roberts and Justice Alito. The 2005 nomination of Harriet E. Miers, on the other hand, collapsed amid a revolt by conservatives who feared another Justice Souter.

Liberals have had Scalia envy for nearly a quarter-century, only to be let down. They considered President Bill Clinton’s selections of Ruth Bader Ginsburg and Stephen G. Breyer to be satisfactory but not satisfying, much like the nomination of Sonia Sotomayor last year. While Justice Ginsburg came closest to what they were looking for, given her record of advocacy for women’s rights, she does not go far enough for them on capital punishment and other issues.

Richard Primus, a professor at the University of Michigan Law School, said conservatives did more to influence Republican nominations because the energy on court advocacy is on the right, which still resents rulings that barred school-sponsored prayer, legalized abortion and upheld some affirmative action programs. “It still lives off of that anger, and nothing of that sort of fire has really taken hold on the other side,” Professor Primus said.

The left, by contrast, focuses on guarding the status quo, a less animating mission. “The quote-unquote liberals are defending the New Deal and Warren court inheritances,” said Bruce Ackerman, a constitutional scholar at Yale Law School....

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