Would Obama Nominate A Breyer or a Brennan?:
Yesterday's New York Times editorial page made the following prediction about a future Supreme Court pick from Barack Obama:
As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.
  That seems very unlikely to me for several reasons. The first reason is that when Emily Bazelon asked Obama's advisors this precise question a few months ago, they apparently rejected that strategy:
I wondered if Obama might favor moderate judges over strongly liberal ones—a translation to the bench of his calls for unity and bipartisanship, in other words. But [Obama advisors] Minow and Tribe rejected that. And Sunstein himself has written that given the roaring conservative voices currently on the court and its shift to the right, minimalism isn't necessarily the best posture for the next justice. "I clerked for Justice Marshall, and while I don't agree with him on everything by any means, there is an argument that the court would benefit from someone with a vision of equality and liberty," Sunstein said. "That is clearly absent." On Obama's staff, that absence is also keenly felt.
  This attitude shouldn't surprise anyone: My sense is that the Obama supporters who follow the courts see center-liberals such as Breyer as far from ideal. In the academy, for example, the model Supreme Court Justice remains William Brennan. Brennan is widely considered a real judicial hero, treasured for his willingness to swing for the fences and his ability to squeeze out five votes when needed. Brennan was a true role model; in contrast, Breyer is seen as more of a technocrat. Why pick someone like the latter over someone like the former?

  Further, today's liberal Justices were either Republican nominees who ended up more liberal than was expected or Democratic nominees who were compromise nominees picked by a weak President who needed to ensure Senate confirmation. If Obama is elected, he will not be a Republican, and he seems unlikely to need to nominate a compromise nominee. If he is elected, Obama will likely have a strongly Democratic senate, and he probably won't need to worry about Senate confirmation in the same way that Bill Clinton did by the time he picked Ginsburg and Breyer.

  Finally, it's important to note that the two Justices most likely to retire in an Obama Administration are the two Justices who are arguably the two most liberal Justices, Ginsburg and Stevens. Because the center of the Court defines its tone, a Ginsburg or Stevens retirement will set up a short-term impact for retirement that would pressure Obama to nominate an "all out" liberal. The dynamic is this: Replacing a Ginsburg or a Stevens with a moderate would risk moving the Court to the right in some cases, while replacing either of them with an "all out" liberal wouldn't move the center of the Court at all (at least in the short term). Would Obama supporters be satisfied with an Obama Supreme Court pick that moved the Supreme Court to the right? Would the New York Times editorial page? In both cases, I tend to think the answer is "no."