Alito, Ginsburg and the "balanced court"

David Boaz na Reason:

Ginsburg in the "Balance"
It didn't matter then—it shouldn't now

Remember all those news stories in 1993 about how the nomination of former ACLU lawyer Ruth Bader Ginsburg to replace conservative Justice Byron White on the United States Supreme Court would "tilt the balance of the court to the left?"

Of course you don't. Because there weren't any.###

In the past three months, the major media have repeatedly hammered away at the theme that Judge Samuel Alito Jr. would "shift the Supreme Court to the right" if he replaced retiring Justice Sandra Day O'Connor.

(...)

But note the contrast to 1993, when President Bill Clinton nominated the liberal Ginsburg to replace conservative White. White had dissented from the landmark decisions on abortion rights in Roe v. Wade and on criminal procedure in the Miranda case, and he had written the majority opinion upholding sodomy laws in Bowers v. Hardwick. Obviously his replacement by the former general counsel of the ACLU was going to "move the court dramatically to the left."

So did the media report Ginsburg's nomination that way? Not on your life.

(...)

Despite the Post's claim that Ginsburg was a centrist, she has in fact been a consistently liberal vote on the Supreme Court. Research by Richard J. Timpone, director of the Political Research Laboratory at Ohio State, finds that she is the most liberal member of the Court on economic issues and virtually tied with Justices John Paul Stevens and Steven Breyer on civil liberties. The Institute for Justice reviewed three years of Court terms and found: "The justices least likely to constrain government power and protect individual liberties were Justices Ginsburg and Breyer." Three years later they found the same results for Ginsburg's first seven terms: she and Breyer voted against protecting civil and economic liberties more often than any other justice.

The issue is not Ginsburg's record, but the media's notion that the Supreme Court exists in some sort of delicate balance which will be upset by the introduction of a conservative justice. The Senate has every right to consider whether Judge Alito will be too conservative, too accommodating to executive power, or too dismissive of discrimination claims. But the Supreme Court's current ideological makeup is not divinely ordained, and we should stop wringing our hands over whether he will "shift the court" in some direction.