I am shocked, shocked to find that Court-packing is going on in here

I do not want Brett Kavanaugh on the Supreme Court, just as I did not want Neil Gorsuch on the Supreme Court. But some of the complaining from my ideological compatriots is embarrassing. 

It starts with Charles Schumer's suggestion that Trump should have nominated Merrick Garland, which Sen. Sheldon Whitehouse endorsed as an example of a "really legitimate nominee," in contrast with whoever Trump is inclined to nominate. Now Dahlia Lithwick cannot believe that Kavanaugh believes that it is OK to pack the Supreme Court with justices who will not turn out to be ideological disappointments, as Warren, Souter, and O'Connor were. (Poor Justice Brennan has been forgotten on this list). She writes of Kavanaugh that "now the young lawyer who predicted that where there was a will, there was a way to pack the courts, has himself gone on to become the 'predictable' nominee who won’t let the party be Soutered or O’Connored again."

Well, yes. Of course Presidents can pack the Court with Justices they believe are ideologically simpatico and will remain so. FDR spent 12 years doing that. And imagine that Hillary Clinton had won and gotten a Democratic Senate, then renominated Garland and been handed Kennedy's retirement. I doubt Lithwick and other liberals would complain that Clinton had nominated Patricia Millett or Goodwin Liu, who would pack the Court with a six-Justice liberal majority inclined to protect and expand constitutional protection for abortion rights, racial minorities, etc. And liberals would be running around to ensure that either nominee would be predictable in their decisionmaking on key constitutional issues and that Democrats would not be "Whited" or "Frankfurtered" on major issues.

It is time to change the discussion around SCOTUS appointments by rethinking several things:

1) There are not going to be any more Warrens or Souters and we really need to stop talking about the possibility. Both appointments are, in political terms, ancient history. Republicans care too much about judicial appointments and the Federalist Society (which was in its infancy when Souter was appointed) is the incubator through which most conservative lawyers and judges come up; both guarantee that serious nominees will have a clear and obvious legal and constitutional vision. The polarization in the political parties now maps onto judges likely to be serious candidates under those parties. Republicans like David Souter or William Brennan do not exist anymore and neither to Democrats like Felix Frankfurter. As Mike Dorf puts it, a "mainstream Republican appointee and a mainstream Democratic appointee are ideologically quite distant." So a Republican President will appoint consistent judicial conservatives. As I Democrat, I hope the next Democratic President will appoint consistent judicial liberals.

2) Because of that polarization, new legal issues or regimes are unlikely to arise that shake-up the constitutional order or split constitutional allies. FDR packed Court with New Dealers because that is what mattered to him. In the late '40s and early '50s, the legal landscape shifted to a focus on civil liberties and individual rights. FDR appointees such as Black, Douglas, and Murphy went one way, Frankfurter another. I cannot envision any new, unthought-of issues that are going to become salient that will not have an obvious preexisting Federalist/Non-Federalist (or Democratic/Republican) alignment. No high-profile constitutional issues are suddenly going to unite Kagan and Kavanaugh.

3) Republicans are better at this and, polls from 2016 suggest, care more about it. But why is that? Perhaps because it is easier to create fervor to fight against something than to fight for it. The Federalist Society formed as a response to the perceived excesses of the Warren Court and liberal constitutionalism and the need to fight back against it. Republicans harvested support from religious activists over the need to push back against Roe and doctrines limiting religion in schools (and, soon, other places in society). There is a fear of attack and loss; control of the courts is essential to defending against that attack. By contrast, liberals view liberal constitutionalism as a failure, a Hollow Hope that did not and cannot achieve social change, at least not alone. But disappointment at not achieving full social change through the courts seems to have metastasized into apathy about the courts and the need to elect Democrats to the Senate and White House so they aggressively fill judicial vacancies.*

4) Much is being made of Trump filling vacancies at a record pace in the first two years of an Administration. This could represent GOP concern (represented by the roles of Leonard Leo, Don McGahn, and Senate Republicans more than Trump himself) in contrast to the apathy of Obama (who had a Senate majority for six years) and Bill Clinton (who had a Senate majority for two years). But the rules of Senate engagement are different than they were even four years ago. So we can wonder what the next Dem President with a Senate majority will try to do.

5) That Republicans are better at this should not be grounds for liberals and Democrats to say stupid things, such as suggesting that a Republican President appoint a Democrat to the Court or complaining that a Republican President is packing the Courts. I would hope that President Hillary Clinton would have laughed at a suggestion from Mitch McConnell. And I would hope that liberal journalists would laugh if someone in the National Review complained about Clinton packing the courts.