The Myth of Judicial Moderation

National Review nails it:

As it happens, Justice O'Connor's career demonstrates the futility of the search for judicial compromise. Confirmation battles have gotten more bitter, not less, during her time on the Supreme Court. Doubtless this trend has had many causes. But surely one of them was the growing importance of the Supreme Court in American life. O'Connor contributed as much as any justice to the Court's increasing power. And it was the very traits that her liberal admirers are now counseling the president to seek in a replacement that made this expansion of power possible.

The lack of rigid principles for which O'Connor is being applauded made it easy for her to find compromises in particular cases. This moderation meant that no party ever knew that it had definitively won or lost. Supporters and opponents of abortion; friends and foes of school prayer; activists for and against racial preferences; nationalists and federalists: All had a chance of winning her vote for their cause in the next case, less because she was applying principles impartially than because she was not applying principles at all. But the lack of clear rules made the Court's will that much more important. Justice Scalia's relatively rule-bound jurisprudence constrains his decisions in a way that Justice O'Connor's jurisprudence never did. If the justices are going to be able to follow their whims — and are going to gradually expand the field of issues they take it upon themselves to resolve — then it becomes that much more important for political activists to make sure that the next appointee to the Court shares their views and sensibilities.

The Court should be clear. With constant 5-4 rulings, it is not. Moreover, there is little incentive for compromise in a Court where one need only flip the ambivalent O'Connor to get a hardline win for their side.