Moving the Courts
It is nonetheless worth thinking about the general strategy the Obama-ites ought to adopt toward judicial appointments. This graphic from a recent piece in The New York Times summarizes research about which I've posted here before. The research conducted by a pair of reasonably right-leaning law professors at the University of Chicago, details just how far to the right our current court has swung. This is due to the fact that Republican presidents have appointed extremists and Democrats have appointed moderates. The upshot? Each member of the five court majority on the Roberts court is among the top ten most conservative justices ever (correction: since 1937) based on analysis of their actual voting records.* Of the sitting justices, only Ginsberg is (barely) among the top ten most liberal justices. (I do not know this for a fact, but I would wager that the rightward shift has been even more pronounced on the various lower level federal courts.)
The situation is outrageous. Obama needs to use whatever appointments might come his way to redress the extremist trend in the court. That would mean appointing one or more justices further to the left than Ginsberg, regardless of whom they might be replacing. and it means looking hard at the lower courts and deploying a strategy that will bring not just moderate, but left-leaning judges to the bench.
A pragmatist, after all, is not concerned with consensus, but with the robustness of debate and therefore with insuring a wide range of views can find expression therein. Put otherwise pragmatists are properly concerned with the uses of disagreement. And at this point the courts are a sure bet.
* You'll note from the graphic that the most recent departures from the court - O'Connor and Rehnquist - also were among the top ten most conservative.