That is a fair point, but a simple rephrasing sidesteps that and still maintains the thrust of the argument: a justice that readily defers to 4A is more likely to be appointed by an unprincipled flip-flopper than a consistent strong state advocate.  It is the same logic that makes the selection of a half empty cylinder rational in a game of Russian roulette, when the alternative option is a full cylinder.  A mechanism for a vote of no confidence sure would be nice right now.