Here's a front-page NYT piece on Justice Kennedy, whose nomination to the Court was sold to conservatives as "Bork without the beard" and who, 18 years laters, has conservatives fuming about impeaching him.
For more than a decade, Justice Kennedy has infuriated the right, writing decisions in cases that struck down prayer at public school graduations, upheld abortion rights, gave constitutional protections to pornography and gay sex and banned the death penalty for juveniles.
With talk of a possible court resignation to follow the term that ends Monday, Justice Kennedy is looming in many conservatives' minds as just the kind of painful mistake they hope President Bush avoids. Showing few sharp edges in life or in law, the justice emerged as a consensus third choice, after President Ronald Reagan's first two selections failed. Demanding more ideological clarity in what could be the first Republican selection in 14 years, the right is now mobilized with a cry: "No more Tony Kennedys."
I thought the cry was "No more Souters." But Souter, appointed by the first President Bush, veered all the way to the liberal side of the Court. Kennedy just took up the middle position. It's not enough, I suppose, to avoid a Souter. You've got to avoid a Kennedy.
I tend to think that if O'Connor retires, vacating one of the center spots, the new Justice will feel drawn to play the centrist role -- and if he does not, someone else will move toward the center. There's a certain small group dynamic going on here.
But there is a more pervasive problem that has dogged conservatives over the years:
Ever since the elevation of Earl Warren, Republican presidents have picked justices who disappoint the Republican faithful: William J. Brennan Jr. (President Dwight D. Eisenhower), Harry A. Blackmun (President Richard M. Nixon), John Paul Stevens (President Gerald R. Ford), Sandra Day O'Connor (President Reagan) and David H. Souter (the first President Bush).
One result is rage at what [rejected Reagan nominee Robert] Bork sees as subverted democracy. Even though Republicans keep winning elections, he said, the court "can say that the majority may not rule" in areas where permissiveness reigns, including abortion, gay rights and pornography. Calling most justices "judicial oligarchs," Mr. Bork said they reflected "the intelligentsia's attitude, which is to the cultural left of the American people."
Some conservatives blame the judicial selection pool, which is largely confined to graduates of elite law schools that they describe as liberal (Justice Kennedy studied law at Harvard). Some say the Senate confirmation process weeds out strong conservatives. Many critics argue that justices drift left after reaching the court, in the hopes of pleasing "liberal elites."
Much more in the article about Kennedy. And much more carping by Bork.
Myself, I like Justice Kennedy. He's a moderate who takes some strong positions on individual liberty.
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"What "liberal elites" do the new justices feel like they have to please?"
Presumably, they want their work praised by lawprofs and historians.
Kennedy's opinions are nearly unreadable, and have no meat. They are like peanut butter and jelly sandwich opinions. You are looking for the meat, but there is nothing but gooey-ness.
As a practitioner, I hate Tony Kennedy. His opinions are as random as a roulette wheel, offering me little to go on by way of predictive value. He is intellectually incoherent. While he makes some pretty nifty decisions regarding individual liberty – a right to homosexual sex that now forms the basis of challenges to statutory rape convictions and anti-incestual marriage laws – his opinions are of little use to a practitioner attempting to advise a client. The right to define the mystery of life for one’s self? What the hell is that? How is legislative or executive branch counsel supposed to go about protecting that right? “Well, Mr. President, we’d like impose this new regime of standardized testing in schools, but we think it may infringe on the right to define the mystery of life.” “Um, I don’t think we should pass this new speed limit bill. Some people really get a kick out of speeding, and I think we might interfere with how hot rodders define the sweet mystery of life.” The consolation of the Lawrence decision for legal conservatives was supposed to be the fact that the courts would never apply it facially, that the question asked and answered (Can morals ever be a rational basis for law? No.) by Lawrence wasn’t made to be taken seriously. Why did he write it that way? What good is it if the central principle of the case, that morals are not a rationale basis for the law, isn’t really what the court means?
Likewise, Justice O’Connor’s judicial minimalism, as Sunstein calls it, is also useless. Yesterday’s Ten Commandments cases demonstrate that her philosophy is so minimal – especially in the Establishment Clause arena – that she is now standing on a patch of law roughly the size of a pencil eraser, and that’s the goal municipalities have to hit if they wish to avoid offending her.
The Court is nothing more than an ugly, self-serving super legislature. We should admit it, and stop trying to treat it’s dictates as constitutional decisions that we can use to guide our clients. The Court will rule as it wishes to rule, usually holding that whatever elite opinion of the day mandates, is what the Constitution requires.
I’d rather have a nine Ginsburgs than a single Kennedy or O’Connor. At least Ginsburg is honest about what she’s doing.
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