Putting the Kennedy in Kennedy v. Louisiana

Well, lookit that: Obama is criticizing the Kennedy v. Louisiana decision.

Now, obviously Obama would appoint more liberal Justices than McCain would. But there are liberals and there are liberals. And, for that matter, there are conservatives and there are conservatives. Liberals and conservatives should be able to agree that Justice Kennedy writes the bulk of the most sweeping and arrogant decisions to be handed down by this Court. And he, of course, was nominated by President Reagan.

Obviously as well, McCain’s picks would come under greater scrutiny given the disappointments (to conservatives) of O’Connor, Kennedy and Souter. But he’s going to have to get any appointment past an overwhelmingly Democratic Senate. He’s not going to get to appoint any Scalias. The only nominees who will get through are ones that present some real risk. What’s the risk of winding up with somebody like Kennedy – who appeared to be a down-the-line right-winger, but turned out to be a loose judicial cannon?

For a litmus-tester, who is going to base his or her vote overwhelmingly on which candidate is more likely to tilt the judiciary in a pro-life direction, the choice is pretty clear. But if you’re a conservative in the sense of wanting the judiciary to be generally restrained in changing the law, and deferential to the nation’s legislatures, it’s not obvious that McCain is going to be better than Obama.

Here’s another way of putting it: if I knew that an Obama Administration meant a court of Breyers, and a McCain Administration meant a court of Kennedy’s, Obama wins my vote hands down. That’s obviously more than we know. I’m curious how – apart from asking McCain to recite the usual, and useless, litany (“I will appoint judges who interpret the law, not legislate from the bench” “I believe in strict construction” “my favorite justices are Antonin Scalia and Sam Alito” etc) – we can know more than we do.

Update: I should make something clear: the bulk of Obama’s signalling on the judiciary indicates that he would favor quite audacious nominees, more in the Brennan than the Breyer mode. This tidbit is a counter-example to what appeared to be the general trend. My desire to understand better what McCain looks for in a Justice, though, stands