Consensus, unlike love, cannot be made out of nothing at all

The dream that “consensus” is achievable on a Court with an orthodox reactionary as the median vote will never die:

It is an achievement that now could prove as consequential as any Beltway credential. If selected from President Biden’s short list of candidates to succeed Justice Stephen G. Breyer on the U.S. Supreme Court, she could become not only the first Black female justice, but also a mediating force on an institution notable for its polarization.

Senate Republican leaders have warned that they will oppose “radical left” nominees. But jurists across the political spectrum say that, like the president, Justice Kruger’s hallmark is moderation.

“She’s a consensus builder,” said Tani Cantil-Sakauye, the chief justice of the California Supreme Court, who was appointed in 2011 by a Republican governor, Arnold Schwarzenegger. “Beyond her obviously glittering Ivy League education and her brilliant mind is this incredibly humble, self-effacing personality who is very persuasive in bringing groups together on different legal arcs.”

That instinct for reasoned persuasion has made Justice Kruger, 45, a powerful backstage force on a split court whose majority has shifted from right to left during her tenure. Since her arrival, California’s high court — notorious as recently as a decade ago for its partisanship and division — has voted unanimously in nearly nine out of 10 decisions, a rate that far outstrips the U.S. Supreme Court’s unanimity.

This is not a criticism of Kruger, but it’s really long past time to stop picturing the Court through the lens of William Brennan holding up 5 fingers and start picturing it through the lens of a sneering Federalist Society clerk holding up one finger. The compromises of the Burger Court were maybe 5% about William Brennan’s strategic savvy and 95% about the fact that Stewart, Powell and Blackmun weren’t doctrinaire reactionaries, but products of a Republican establishment that was conflicted and cross-pressured. And Burger couldn’t lead the Court because [extreme Uncle Junior voice] he wasn’t respected. Ultimately the centrist/center-right and very occasional liberal opinions reflected the preferences of the Court’s median votes; they weren’t some Jedi mind trick on the part of Brennan. His consensus-building efforts didn’t work with Sandra Day O’Connor as the Court’s median vote — with Brett Kavanaugh or Amy Coney Barrett as the median vote, yeah sure.

I have no opinion about Kruger per se, but Biden needs to focus on getting someone young and really liberal rather than chasing fantasies about tricking reactionaries ruthlessly bred for ideological conformity into abandoning their preferences.