Spoiler: What matters is replacing Scalia.
The Supreme Court has been depicted in terms of a continuum from left to right, most recently in a New York Times graphic purporting to show Judge Garland as exactly splitting the ideological difference between the Courts four “liberal” justices.
I would take this construction with a grain or three of salt, but the Times suggests that a Justice Garland would occupy the space to the right of Sotomeyer (the Court’s most liberal justice) and (by a hair) Ginsberg, but to the left of everybody else, including Kagan and Breyer.
On the basis of that and similar analysis, some are disappointed that Obama did not, for once, lead with his left and nominate a justice in the mold of William O. Douglas or Thurgood Marshall or other progressive judicial fantasy candidate. Someone who would counterbalance the extremism on the right end of the Court. (Hey, how about Justice Bernie Sanders?)
Another post wrote about the politics of it—missed opportunity or 3D chess?—where the discussion got a little bogged down in the question of, is Garland in fact a compromise and a poor pick for the Court. As in, if Clinton or Sanders wins, should Obama withdraw Garland before the Senate can ratify him?
This grossly misunderstands what is at stake in terms of the balance of the court. For the near and medium term and maybe even longer it does not matter how left Garland is. What matters is that he’d replace Scalia, create a new majority voting bloc, and realign the entire court.
Incidentally this is why I think the Senate will have a very hard time ratifying Garland even if you imagine President Elect Sanders and an incoming Democratic majority. They right wing has pinned its entire strategy on a judicial coup d’etait, which Scalia’s passing undoes.
An activist court is essential to the project of permanently containing and disenfranchising an increasingly unhappy and angry populace. The right is not going to suffer realists gladly.
If you go far enough into the future and imagine a court that has shifted so far to the left that Garland is a swing vote who often sides with the right wing, then yes, Garland is in principle a weaker choice than someone who votes with that hypothetical court’s hypothetical left.
In similar fashion, Garland’s relative age is a theoretical disadvantage versus a 40-year-old version of himself, who might be expected to hang around anchoring majorities for 20 additional years.
But none of these things are going to matter for decades, if ever. Arguably other qualities, such the ability to engage the other justices or to forge a collective judicial philosophy that resists the logical absurdity of Scalia’s originalism and the nihilism of Bush v Gore, are things that matter more than the exact degree of his ideology or his age.
So what matters is not how left he is, but that he replaces a real extremist and empowers a new majority bloc.
Incidentally if anyone wants to point out how all this left-right stuff is inadequate to describe the real differences on the Court, I completely agree.