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
Republicans have certainly appointed a number of justices who turned out to be disturbingly liberal. Sometimes that was through miscalculation (Souter), other times it was because the Republican President making the nomination was more concerned with geographical balance (Brennan) or political patronage (Warren) than with ideology.
But in fairness to Ronald Reagan, he didn’t want to appoint Anthony Kennedy. He turned to Kennedy only after Robert Bork was rejected and Douglas Ginsburg’s pot-smoking made him unconfirmable.
In retrospect, Reagan’s greatest mistake was in making Sandra Day O’Connor his first Court appointment. If he’d nominated Bork first, there’d probably have been no problem, and he could always have picked O’Connor later.
— astorian · Jun 27, 02:42 PM · #
I’d like to hear more about your reasons for preferring a Court full of Breyers to a Court full of Kennedys. Both of these Justices share, it seems to me, a view of the judicial role which ties closely their own sense of a law’s policy merits with that law’s constitutionality. To be sure, Justice Breyer does not seem pompous, and the tone of his opinions is not insufferable. But, don’t forget . . . Justice Kennedy votes to uphold the partial-birth-abortion ban (Breyer doesn’t); Justice Kennedy votes to uphold school choice (Breyer doesn’t); etc., etc.
— Rick Garnett · Jun 28, 08:19 PM · #
astorian: So long as we’re wishing, I wish Reagan had stood by the Ginsburg appointment. It’s hard to know what kind of a Justice Bork would have made, as he was clearly changed by the experience of rejection by the Senate, but I would not want Bork as he is now sitting on the Court.
Rick: in a nutshell: with Kennedy I’ll get a variety of dramatic new precedents, some of which I’ll agree with as a policy matter, and some disagree with, but few of which I feel comfortable with as a matter of Constitutional reasoning, and whose sweeping nature, cumulatively, would further raise the stakes in the politicization of the Court. With Breyer, by contrast, I get predictably liberal opinions that move the Court incrementally within the bounds of the law as it is already generally understood. Elections would still matter in terms of their impact on the Court – a more conservative President would appoint Justices and judges who would move the Court in a conservative direction, and a more liberal President the opposite – but there would be a higher level of predictability, I should think, and a lower temperature about individual nominees. I basically don’t buy the notion that you can take politics out of the Court, but I do think we could make the nomination process, and thew operation of the Court, less melodramatic.
— Noah Millman · Jun 30, 02:31 PM · #
Sadly, while Robert Bork would undoubtedly vote the way I’d like 95% of the time, he seems now speaks and writes less like a brilliant legal scholar than like an old curmudgeon. That’s STILL better than Anthony Kennedy, from my standpoint, but it’s hard to look at the latter day Robert Bork and dream of what might have been. At best, he’d have been like Scalia, an old grouch writing witty but futile dissents.
Yes, Scalia has been a disappointment, too. He almost always votes as I would, and he’s entertaining to read. But the fact remains, he has shown almost no ability to swing other justices his way. If anything, his rigidity and irritability may frequently have pushed O’Connor and Kennedy farther left than they wanted to go.
— astorian · Jun 30, 04:23 PM · #