How can liberals take back the Court?

Linda Greenhouse over at The New York Times has an interesting article about what Democrats and liberals can (or cannot) do to reclaim the Court. The prospects seem grim. As she points out, the average age of the liberals is 74, whereas the average age of the conservatives is only 61. Even if a Democrat wins the presidency in 2008 and again in 2012, there is no guarantee that he or she will even get the chance to replace a conservative with a liberal. It is likely that the next President will get to replace John Paul Stevens, Ruth Bader Ginsburg, and David Souter, all liberals. Certainly, replacing these Justices with youthful liberals would be nice, but it wouldn't change the balance on the Court at all. So, liberals have to think about the long-term.

Unfortunately, thinking about the long-term is incredibly difficult when it comes to the Supreme Court. Liberals have to attempt to reverse a trend 40 years in the making (indeed, of the last 15 Supreme Court Justices, only two have been Democrats); they have to attempt to convince the public that "strict constructionists" are not the ideal Justices, which will no doubt be difficult, for at least two reasons. First, there is a lot of public apathy regarding the Supreme Court. So, it would be difficult for the Democratic party to try to motivate voters to vote on the basis of the future of the Court. This has been done in the past with some success when Nixon ran on a platform of opposition to the liberal Warren Court (although, it should be noted that three of his four nominees went on to support the Roe v. Wade decision). Ever since that election, the Court has been trending more conservative. Of course, Republicans like Nixon and Reagan had an advantage, they could argue "These liberals are taking God out of the classroom! These liberals are allowing criminals to run free! These liberals want to kill your babies! These liberals are legislating from the bench! Etc." These arguments, while rather simplistic in their understanding of the Court, have been very powerful in the past few decades. Indeed, most Americans don't want a liberal Supreme Court. So, liberals have a daunting task; convincing the American people that they want what they clearly do not.

I, for one, don't think it can be done. But, that doesn't necessarily mean that the Court is in the hands of conservatives forever. I think the only way to get a liberal Court is to make the Court a non-issue in presidential elections. If Democrats can distract Americans with other policy considerations, they can win elections, but when the focus comes directly on the role of the Court in American politics, conservatives will win nine times out of ten.

So, for liberals to have a shot at "taking back" the Court, a Democrat must win in 2008 and be re-elected in 2012, and another Democrat must win in 2016. After all, Scalia and Kennedy can probably stick it out until 2016 (they'll only be 80, which isn't that old for Supreme Court Justices). Any long-term plan attempting to reshape the constitutional vision of the American public is bound to fail. Democrats simply need to win elections.

Perhaps I shouldn't say "simply."