So, a question I continue to ponder: should Louis Brandeis' nomination have been defeated (as it almost was) because of open opposition to his political views, and, let's say, a minority filibuster? Is that a necessary cost of Bazelon's implicit position here? Is it a cost worth paying (or does this presuppose a principled consistency that is just silly in today's political world)?

One can plausibly argue that Bill Clinton simply gave up on potential Court nominees who would excite too much partisan opposition. It's all too easy to forget today, given the current composition of the Court, that Breyer and Ginsburg were (rightly) perceived as exceedingly moderate candidates from a Democratic/progressive standpoint (as were a high proportion of intermediate appellate court nominees under Clinton, although they advanced gender and racial diversity on the federal courts).

Stevens and Souter (for whom I am exceedingly grateful) were Republican appointments.

There are no members of today's Court comparable to the liberal picks (of course, not all were) of FDR/JFK/LBJ or even (perhaps especially) Eisenhower.

Today's "liberals" on the Court are, by recent historical standards, centrist moderates, today's "centrists" are strong ideological conservatives, and Scalia and Thomas would have embarrassed James McReynolds. (That may be slightly strong--I don't think McReynolds would have drunk from the same water cooler as Thomas--or Breyer or Ginsburg, for that matter.)

When Stevens reflected on whether any of his 1975 brethren could have signed Roberts' plurality opinion on the schools case, he wasn't saying the half of it.

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