Elphaba

I am opening this topic for a general discussion of likely Supreme court appointees and the potential for a Democratic filibuster. Rehnquist, O'Connor, or Stevens may announce retirement soon and speculation abounds.

Although the following article deals primarily with how Kennedy has disappointed conservatives, it offers an overall assessment of how judicial nominations have faired in the past. From what I have read here, I would be surprised that a compromise candidate will be submitted.

It is a long article and I hope that you will read all of it. I have highlighted the comments that I think are salient to the overall discussion, but of course you are free to select from the entirety.

In Battle to Pick Next Justice, Right Says, Avoid a Kennedy
By Jason DeParle
The New York Times

Sunday 26 June 2005

Washington - When Anthony M. Kennedy was nominated to the Supreme Court in 1987, he took the place of a fallen conservative icon, Robert H. Bork, whose defeat in a Senate conflagration still shapes judicial politics. Sunny while Mr. Bork emanated gloom, clean-shaven while Mr. Bork was bearded, Justice Kennedy was above all philosophically undefined while Mr. Bork's conservatism was chiseled.

But for the next few years, Justice Kennedy sided so reliably with the court's right flank that relieved conservatives proclaimed him an ally: "Bork without the beard."

No one calls him that now. Instead, some notable conservatives are calling for his impeachment. 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."

A genial apostle of tolerance and consensus, Justice Kennedy, 68, is an unlikely lightning rod, one whose traditional Catholic background has little in common with the flag-burners, pornographers or abortion advocates his reading of the Constitution protects. In an interview last week, he responded to a question about what it was like to be cast as a Judas justice.

"Oh, I suppose everyone would like it if everyone applauded when he walked down the street," he said. "There is a loneliness. You can have all the clerks and all the colleagues you want, but in the end the decision is yours to make. And it's surprising how often the judge must go back and ask, 'Why am I doing this?' "

While his critics protest specific outcomes in cases from the culture wars, they also express outrage at his expansive style, which they call pure judicial activism.

In an interview on Thursday, Mr. Bork, a prolific lecturer and author who functions as a kind of shadow justice, said Justice Kennedy's opin-ions typified a court "no longer sticking to the Constitution" but "enacting a political agenda." Then he returned to the sore and now timely subject of his own defeat.

"It's hard to pick the right people in the sense of those who won't change, because there aren't that many of them," Mr. Bork said. "And if you do identify somebody who believes in the original principles of the Constitution, then the other side can see it too and will put up a bitter fight. So you tend to get people who are wishy-washy, or who are unknown, and those people tend to drift to the left in response to elite opinion."

Looking ahead to the fight that may unfold if the ailing chief justice, William H. Rehnquist, or another justice resigns, Mr. Bork offered a fix: "I think the solution is one hell of a battle for judges who stick to the actual Constitution."

A Dress Rehearsal

Much of the right seems ready now for just that kind of fight. This year's showdown over Mr. Bush's nominees to federal appeals courts played out as an elaborate dress rehearsal for a Supreme Court battle. It ended with a seeming stalemate between Republicans who want to end the possibility of judicial filibusters and Democrats who want to preserve them.

Organizational battalions are now in place, with conservatives saying they are playing defense against what they call a powerful attack machine on the left that took down Mr. Bork, and nearly Justice Clarence Thomas. Encouraged by White House advisers, C. Boyden Gray, a former aide to the first President Bush, has set up the Committee for Justice to coordinate strategy and run advertising campaigns. Leaders of the Federalist Society, the premier network of conservative lawyers, have started another group, the Judicial Confirmation Network, to rally support.

Progress for America, another conservative advocacy group with close ties to the White House, said it planned to spend "an initial $18 million" on ads for a Bush Supreme Court nominee. The campaign started last week, spending $700,000 to discredit liberal attacks before they can begin.

Conservative Christian groups are taking the lead. Focus on the Family, a leading evangelical group, and its Washington spin-off, the Family Research Council, have rallied churchgoers around judicial fights, seeing them as a chance to reverse decades of losses in the culture wars.

"The confrontation is coming with a vengeance," wrote Dr. James C. Dobson, in a Focus on the Family Action letter to about two million supporters. As he often does, Dr. Dobson labeled Justice Kennedy "the most dangerous man in America."

For much of the right, his story is a dismayingly familiar one. 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 Mr. 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."

Virtually all the court's conservative critics say that Republicans have not fought hard enough on behalf of philosophical purists.

"I think the conservatives have decided they've been outmaneuvered in the past," Mr. Bork said. "They're ready to fight back."

Among the combatants is Michael P. Farris, chairman of the Home School Legal Defense Association and a prominent social conservative. "The basic line I've heard again and again is 'No more unknown packages,' " Mr. Farris said. "We want to know what we're getting. Kennedy was an unknown package."

Virtually unknown to the public, Justice Kennedy was scarcely bred for the crossfire. By outward appearances, he has lived a life of utter conformity, attending his parents' alma mater, Stanford; taking over his father's law practice; and raising his three children in the house where he was raised. As a childhood friend tells the story, Justice Kennedy's father was so nonplused by his son's altar-boy piety, he offered him $100 to get in trouble; the young man refused. (If such an exchange occurred, Justice Kennedy said he no longer remembers it.)

Among those who find Justice Kennedy hard to define is Justice Kennedy. Asked last week about the source of his political values, he said, "my religion, I guess," a brand of traditional Catholicism. Yet he also talked of imbibing the openness and optimism of a boyhood spent in postwar Sacramento. Asked how he had become a conservative, he said: "That's not a term I usually use for myself. People say I'm a libertarian. I don't really know what that means."

In a wending conversation last week, he touched on topics as diverse the Enlightenment (he likes it) and the television free-for-all "Hardball" (he doesn't). The partisanship of Washington seems alien to him. "Earl Warren ran on both the Democratic and Republican tickets," he said, speaking of the California governor and family friend who joined the Supreme Court in 1953 as a famously activist chief justice. Moving to Virginia after joining the court, Justice Kennedy was startled that someone thought it necessary to warn him that a neighbor was a Democrat. "I found that a little offensive," he said.

His rejection of the term aside, "libertarian" at least partly describes him. Among the childhood memories he conjured last week was his reading the scene in George Orwell's novel "1984" in which the protagonist is tortured into saying two plus two is five. Then, "they say, 'we're going to continue the torture until you believe it,' " he said, recalling his adolescent horror at the prospect of mind control.

Liberty, especially liberty of speech, remains a defining concern, and he is a zealous enforcer of First Amendment rights. A 1980 case drew his special ire as an appeals court judge. The police paid a 5-year-old to inform on his mother - an infringement of the parent-child bond he called an especially "pernicious" encroachment upon "personal liberty."

His admirers see in him the essence of a judicial temperament: good judgment, fair-mindedness and a willingness to disentangle his own moral values from the law. "There's a moral component to tolerance," he said last week. "It means, 'I respect your views, I respect your standing as a citizen.' "

But his ever-polite manner is not at issue; what detractors question are his judicial views. In writing a decision this year that banned the death penalty for juveniles, Justice Kennedy bolstered his argument by citing similar bans in such questionable arenas of human rights as Nigeria and Iran.

Writing in National Review, Mr. Bork called the decision a "dazzling display of lawlessness" that comes "close to accepting foreign control of the American Constitution." Two marquee names of Christian conservativism, Mr. Farris and Phyllis Schlafly, demanded his impeachment. The House majority leader, Tom DeLay, warned that Congress could remove judges who failed to show "good behavior."

One critic at a forum on the "Judicial War on Faith" accused Justice Kennedy of upholding "Marxist-Leninist, satanic principles."

It Started with School Prayer

The case that might be titled Conservatism v. Kennedy began a few years after he joined the court. In 1992, he drafted what was to be a majority opinion that affirmed the right to school prayer. Then he switched sides and struck it down. "My draft looked quite wrong," he wrote to Justice Blackmun.

His decision in the case, Lee v. Weisman, cited "research in psychology" to argue that students might feel coerced by prayers at public school graduations. Writing in dissent, Justice Antonin Scalia, the court's conservative anchor, scoffed that "interior decorating is rock-hard science compared to psychology practiced by amateurs."

Five days later came a decision in an epochal abortion case. For years, the court appeared to be headed toward an overturn of Roe v. Wade, the 1973 case that found a right to abortion in the 14th Amendment's due process clause. Had 58 senators not voted against him, Mr. Bork would have cast the decisive anti-Roe vote.

Justice Kennedy's constitutional views on the matter were largely unknown, since his 12 years on the United States Court of Appeals for the Ninth Circuit had brought no major abortion cases. His record there was solidly conservative, but there were glints of ideological departure. While upholding the Navy's right to expel a gay sailor, he warned in a 1980 footnote that some restrictions on homosexuality "may face substantial constitutional challenge."

Hoping to forestall his nomination to the Supreme Court in 1987, opponents flagged the case for Senate conservatives. "No way, Jose," responded Senator Jesse Helms, Republican of North Carolina, at the prospect of Mr. Kennedy's selection. But Mr. Reagan chose him anyway, in part for his straight-arrow reputation. Mr. Bork had failed, and a second choice, Douglas H. Ginsburg, had withdrawn after admitting marijuana use.

Justice Kennedy then met with Senator Helms and assuaged him by saying that he admired his anti-abortion views. A published account of the meeting appeared, and Democrats quizzed Justice Kennedy about it at his confirmation hearing.

"I admire anyone with strong moral beliefs," he said. "Now, it would be highly improper for a judge to allow his or her own religious views to enter into a decision respecting a constitutional matter."

The deft display of diplomacy brought unanimous confirmation.

In his surprise ruling four years later, Justice Kennedy not only reaffirmed the fundamental right to an abortion, but he joined an opinion that chided Roe opponents, including those in two Republican administrations, for repeated assaults on a settled issue around which a generation of citizens had made life plans.

"Liberty finds no refuge in a jurisprudence of doubt," he wrote in the case, Planned Parenthood v. Casey, casting his views in part as a defense of precedent.

The infuriating news for conservatives was delivered with a puzzling overture, as Justice Kennedy invited a reporter into his chambers just before taking the bench. "Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line," he said. Then he excused himself to "brood."

Explanations for his defection flourished. He had been manipulated by law clerks. He had been seduced by elites. He had misled the right all along. Mr. Bork said: "He had indicated that he would overturn Roe v. Wade, and then changed his vote. He was expected to be different."

Justice Kennedy later offered his own view in a lecture to a law school class. As reported by Jeffrey Rosen in The New Yorker, his "eyes filled with tears" as he explained his moral opposition to abortion, but he said he could not impose personal views.

Among the many things in Casey that provoked conservatives is one often-ridiculed line. "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," Justice Kennedy wrote.

"What the hell does that mean?" Mr. Bork said last week, mocking its vagueness and its distance from constitutional text. "Obviously it doesn't mean the individual is unbounded by any law. So it must mean that the individual is unbounded by laws the justices don't like. It's simply an assertion of power, in a way that's particularly empty of intellectual content. It sums up what's wrong with the court."

More conservative setbacks followed Casey. In a 2003 case, Lawrence v. Texas, Justice Kennedy wrote the decision that found constitutional protection for homosexual sodomy. And he did so with unexpected sweep, calling the Constitution sufficiently expansive that "persons in every generation can invoke its principles in their own search for greater freedom."

Gays are "entitled to respect for their private lives," he wrote. "The state cannot demean their existence or control their destiny" by outlawing sex. As Justice Kennedy read from the decision, which overturned a recent precedent, some gay and lesbian lawyers in the courtroom silently cried.

Scathing in dissent, Justice Scalia warned that the ruling undermined all kinds of morals-based legislation - including laws against adult incest, bigamy, and bestiality - and laid the groundwork for gay marriage, a notion that Justice Kennedy's opinion explicitly rejected. But a few months later, when the Massachusetts Supreme Court affirmed a right to gay marriage under the State Constitution, it cited the support of the Lawrence ruling.

"Anybody who doesn't understand that Lawrence legalized gay marriage doesn't understand how to read Supreme Court cases," Mr. Farris said.

The Good Old No. 3 Club

For all the furor on the culture-war fronts, Justice Kennedy's record remains largely conservative. He sided with the 5-4 majority in Bush v. Gore, the 2000 case that stopped a Florida vote recount and ensured a Bush victory. And his views on affirmative action are especially immune to change. As he sees the matter, the Constitution forbids it.

In his agonizing over many social issues and his ability to empathize with those outside his own moral code, Justice Kennedy's admirers see courage. "Kennedy has the ability to generalize from his own freedom to the freedom of other people," said Robert Gordon, a professor at Yale Law School.

Others praise his openness. "One of the things critics ridicule in him is that he changes his mind a lot," said Michael Dorf, a former Kennedy clerk. "In my mind that's a good thing. You want judges to be impartial and not out of hand reject the arguments on either side."

Mr. Rosen, a law professor at George Washington University, has a more ambivalent view. He talked with Justice Kennedy at length in 1997 for The New Yorker, which cast him mostly in favorable terms. But Mr. Rosen said more recent cases had left him uneasy with what he called their unnecessary reach.

"Speaking as a liberal advocate of judicial restraint," he said, "I sympathize with the criticism of Justice Kennedy in some of these areas involving abortion, gay rights and the application of international law to the culture wars." While still seeing a "great good faith" at work, he warned that Justice Kennedy had "embraced a rhetoric of judicial supremacy."

"His opinions are filled with the rhetoric of the unsought burden of judicial review," Mr. Rosen said. "Then pushes it for all it's worth."

Justice Kennedy last week rejected the talk of usurped authority. "In the long term, the court is not antimajoritarian - it's majoritarian," he said. Over time, "people recognize the good faith and the legitimacy and openness and honesty of the process," he argued. "The judicial function does not lend itself to day-to-day critique."

Meanwhile, attacks come with the job. As the most difficult questions arise, including those of life and death, "we don't have the option not to decide," he said. "I mean, we're the ones who help the executioner pull the switch," he added. "It's not at all surprising that people disagree."

In 1987, with his nomination still pending, Justice Kennedy received a note from Justice Blackmun, who as the author of Roe was a magnet of scorn and himself a third pick. Welcome to "the good old No. 3 club," Justice Blackmun wrote.

"Mr. Justice Story was also in the No. 3 club," Justice Kennedy replied. He was referring to James Madison's 1812 nominee, Joseph Story, who went on to side with the Federalists, his patron's enemies.