The word is out that Senator Barack Obama's judicial advisory team (assuming this report is accurate) takes him to be interested in judicial nominees who come across like John Roberts in person but who would decide cases like Justices Thurgood Marshall and William Brennan. [hat tip: Orin Kerr]
Obviously he doesn't mean they'd come across sounding like a moderate conservative, or it would be hard to get Democrats to support his nominees. He means someone who doesn't have much of a record in terms of ideology but who seems like a well-qualified judge. But he also doesn't mean someone who would be moderated in liberalism the way John Roberts is moderated in his conservatism. Otherwise he wouldn't name Justices Brennan and Marshall, two of the most liberal justices ever on the Supreme Court (by pretty much anyone's standards).
So he wants nominees who are actually extremely liberal but sound moderate. Moderation within judicial liberalism ends up with something like Justice Breyer, the one justice of the four liberals on the Supreme Court who is most likely to vote with the conservatives on constitutional issues of any moment. (Justices Ginsburg and Souter often vote with conservatives on statutory interpretation, but that's only when little of ideological importance is at stake.) Moderation in judicial liberalism does not lead to appointments of judges who will vote the way Justices Marshall and Brennan did.
For political reasons, this strategy does make sense. If you want to replace Justice Stevens, for example, with someone even further to the left, then you better find someone who isn't obviously further to the left, or it would be much harder to confirm them. I'm not going to dispute such a strategy. Both sides in the current environment need nominees who come across the way Roberts did if they want to get anything like a strong confirmation vote. I think McCain would need to be even more conscious of this than a Democratic president would, given the Democratic control of the Senate, but the Senate is still divided enough that the Republicans could present problems for a Democratic nominee if they really want to (and partly because the Gang of 16 was successful, which McCain would then have himself to thank for).
But even if this strategy makes political sense, I think it shows something about Senator Obama. He doesn't say he'd appoint real moderates in order to get them confirmed. He wants real liberals but knows there isn't enough popular support for them to get them through the current Senate. The conservatives I've been reading who are arguing for appointing someone like Roberts in order to get a chance at confirmation are arguing for someone just like Roberts, not someone who sounds like Roberts but actually would vote like Judge Robert Bork. I do worry about whether this counts as deception. But whatever you think about that issues,. this is yet another clear sign that Barack Obama is no moderate, despite the popular view of him. It continues to amaze me how far left of center he is, and yet so many people see him as the sort of person who would be able to break down the gridlock in Congress and get genuine conservatives to work with him on proposals that are anathema to them. I just don't get it.
I had to laugh at the last line of the Emily Bazelon Slate piece I linked to above. The judicial strategy of sounding moderate but turning out to be quite a bit to the left of moderate wouldn't exactly be a new tactic for Senator Obama.