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.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.
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 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).Much more in the article about Kennedy. And much more carping by Bork.
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."
Myself, I like Justice Kennedy. He's a moderate who takes some strong positions on individual liberty.