One of the rationales generally regarded as a knockout among center-left types in the “who is less terrible, Romney or Obama” debate, is the idea that Presidents nominate Supreme Court justices, and Romney’s picks would be further to the right than Obama’s, particularly as far as their position on social issues like reproductive choice and gay rights are concerned.

Narrowly, that’s likely to prove to be accurate. And there are voters who are understandably unwilling to take any chances on these issues. However, the power to nominate is not the same as the power to appoint. It’s disingenuous for Democratic party operatives and their allies in the punditocracy to act as if the move of the court to the right is solely the doing of evil Republicans.

Hoisted from comments:

MontanaMaven says: Democrats can block radical nominations. But they don’t. They let Alito, Roberts, Thomas, Scalia be appointed. Ginsburg is like Sotomayor and Kagan. Appointed for her pro-business leanings. Democratic operatives succeed in getting Democrats all riled up about abortion and gay rights and how the Supreme Court nominations are vital while hoping same Democratic voters don’t understand the real objective is to keep the pro business status quo. There was a New York Times Magazine article years ago called “Supreme Court, Inc.” on this. The last of Nader’s Raiders have gone down to defeat against the pro Chamber of Commerce Supremes. Hugh says: Sotomayor is a corporatist technocrat. Kagan is a backer of the vast powers of the Imperial Presidency and a corporatist. I’ll not just see your two names but raise you two: Alito, Roberts, Thomas, and Scalia. There were always sufficient numbers of Democratic Senators, even when they were the minority party to block all 4 of these nominations at cloture (60 votes required). However, only a single roll call cloture vote was held, and that was on Alito. It failed because 19 Democratic Senators voted with Republicans to bring his nomination to a final vote. Further in the one case where Democrats were in the majority in the Senate and that by a solid margin, the Clarence Thomas nomination, Democrats were instrumental in getting him confirmed. 45 votes in the Democratic Senate caucus: 44 Democrats and the independent Jeffords Samuel Alito: Cloture vote: 74-25 with 19 Democrats voting for cloture (that is allowing a final vote on Alito). Confirmed: 58-42 on January 31, 2006 John Roberts: No roll call vote on cloture so voice vote or unanimous consent. Confirmed: 78-22 on September 29, 2005. 56 votes in the Democratic Senate caucus Clarence Thomas: No roll call vote on cloture so voice vote or unanimous consent. Confirmed 52-48 on October 15, 1991 47 votes in the Democratic Senate caucus Antonin Scalia: No roll call vote on cloture so voice vote or unanimous consent. Confirmed: 98-0 on September 17, 1986. I’m surprised anyone still uses the by now long discredited meme of “vote for Democrats or watch out what happens to the Supreme Court” or even more strangely in your case “Obama’s made great choices for the Supreme Court.” Obama never chose a straight up liberal, or God forbid, a progressive to fill either of the Supreme Court vacancies of his first term. At the same time, Democrats never blocked any of the nominations of the Court’s four most conservative Justices, and in the case of Thomas, even provided the votes necessary for his confirmation.

Yves here. From the 2008 New York Times article, Supreme Court Inc., cited by MontanaMaven:

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.” Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants…. Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars… With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business… This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy. Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans?

Oh, and this article’s official publication date is March 16, 2008, which means it was released on the Internet on the previous Thursday, which was immediately before the Bear Stearns bailout weekend. And as we’ve chronicled on this blog, the split between the elites and ordinary citizens on the need to rein in banks and major corporations has only widened since then.

Even on social issues, Obama’s picks have been less than stellar. From Matt Stoller’s article, The Progressive Case Against Obama:

In terms of the Supreme Court itself, Obama’s track record is not actually that good. As a senator, Obama publicly chided liberals for demanding that Sen. Patrick Leahy block Sam Alito from the Supreme Court. Meanwhile, Obama-appointed Supreme Court Justice Sonya Sotomayor has in her career already ruled to limit access to abortion, and Elena Kagan’s stance is not yet clear.

Similarly, if the Democrats were seriously concerned about the composition of the Supreme Court, why has there been not a peep out of them about impeaching Clarence Thomas, who lied during his confirmation hearings, made serious misrepresentations on financial disclosure forms, and when caught out on having given a speech at a Koch Brothers-funded event, claimed it was a mere “brief drop by” when his own disclosures show he was reimbursed for a four day visit? In addition, Thomas failed to recuse himself from hearings on the Affordable Care Act for instance, when his household had received $1.5 million from groups that were against the ACA. Oh, and it’s not as if he’s any loss on other fronts. Thomas has managed the incredible achievement of remaining silent on the Supreme Court bench for a full five years when no previous Justice has done that for even a single term.

What’s troubling here and elsewhere is that the Democratic hackocracy relies on the notion that no one will check the record on their efforts to assign blame for where we stand, legally and institutionally, on the Republicans. Unfortunately, the combination of powerful messaging operations, a lapdog media, and disengaged voters means this assumption is generally correct.

But it takes only a bit of digging to establish that on the Supreme Court, as with so many issues of concern to the public, it takes two to tango, and the Democrats are plenty culpable in accommodating the efforts of powerful interests to move the governance of this country to the right.