May 2, 2005
By Margaret Talev
Sacramento Bee
WASHINGTON - He wasn't President Reagan's first choice for the U.S. Supreme Court - or his second choice, for that matter - and plenty of conservatives have never let him forget it.
Seventeen years and a handful of decisions later, Justice Anthony Kennedy - a conservative by background but a swing vote on social issues - has become the poster boy for those calling for President Bush's most controversial judicial nominees to be confirmed by the U.S. Senate. They say the president should get to install judges he really wants rather than capitulate to liberals and moderates.
Pressure on Republicans to employ the so-called "nuclear option," a rule change that would stop Democratic filibusters against Bush judicial nominees, picked up in March, just after Kennedy, a 68-year-old Sacramento native, wrote the court's 5-4 opinion striking down the use of the death penalty against juvenile offenders. To some, this was just one more insult by him in a string of decisions on gay rights, pornography, school prayer and abortion.
In that latest ruling, Roper v. Simmons, Kennedy looked to international law and to the nation's "evolving standards of decency." This simultaneously enraged capital punishment advocates and nationalists who say that what happens in other countries should have no bearing on how a judge interprets U.S. law. Calls for Kennedy's impeachment followed from high-profile conservatives including Phyllis Schlafly, who said in an interview that Kennedy's most recent ruling was "a tipping over the edge."
House Majority Leader Tom DeLay, in a recent interview on Fox Radio, called Kennedy's methods "outrageous." Dozens of activists have condemned Kennedy in escalating rhetoric; at least one well-publicized recent speech on judicial activism invoked comments by tyrannical Soviet leader Josef Stalin, with overtones of a death threat.
Kennedy "really has highlighted what kinds of judges we want to have: judges who'll interpret the Constitution as it's written, or judges who'll look to world opinion," said Gary Marx, executive director of the Judicial Confirmation Network, which advocates that all of Bush's judicial nominees deserve to come up for full Senate votes. Marx previously was a coalition organizer for the president's 2004 re-election campaign.
"If you go to a lot of Third World Catholic countries, they'll tell you abortion should be outlawed," Marx said. "Whatever opinion you want to find, you can find it in the world. The only places he wants to go for world opinion are places that agree with the outcome he's looking for."
Erick Erickson, a Macon, Ga., lawyer and political consultant who serves as a director for the blog RedState.org, on which Kennedy has been a hot topic lately, put it more pointedly.
"This all has come to a head over conservative frustration," Erickson said in a telephone interview. "Conservatives feel they worked their butts off to get the president elected, to increase the Senate majority, preserve the House, and now you've got a bunch of old guys on the Supreme Court who are refusing to step down and Democrats in the Senate refusing to move forward with the president's nominations.
"My suspicion is if Democrats dropped the filibuster fight, then all of the conservative wrath would be fixated on the Supreme Court," Erickson said. "That's the last holdout."
Justices rarely grant interview requests, and a court spokeswoman said Kennedy would not agree to an interview for this story. But Kennedy's many defenders in the legal community say there are no grounds for his impeachment. They suspect the resentment toward him has as much to do with who he isn't as with what he is.
Reagan settled on Kennedy for the lifetime post on the nation's high court only after the administration's first choice, Robert Bork, was rejected by the Senate as being too extreme. Reagan's second choice, the also-conservative Douglas Ginsburg, dropped out because of revelations of marijuana smoking. From the start, everyone knew Kennedy was no Bork. He was confirmed easily in 1988.
"I think part of what causes this is people can count to five, and they realize if Bork had been confirmed he would have been a decisive vote on some of these key issues," said 9th U.S. Circuit Court of Appeals Judge Alex Kozinski, a conservative Reagan appointee who served as Kennedy's clerk 30 years ago when Kennedy was starting out as an appellate judge.
Kozinski says those who have worked for Kennedy experience both frustration and admiration for his approach to deciding cases. On more than one occasion, Kozinski said, Kennedy would deliberate at length, indicate he had made his decision, try out his conclusion on himself for a few days to see how he felt, and then reverse course.
"There's too much of a view out there that if you get the right judge you can get the right result," Kozinski said. "Trying to pick judges because you want to ensure a particular result, I don't think that's an appropriate way to pick judges. I can assure you people on the other side of the fence disagree with many of Justice Kennedy's rulings because he can be quite conservative. But he thinks about the cases. He actually tries to be a judge, not a cookie-cutter. And I think that's too little appreciated."
It was as governor of California that Reagan came to know and trust Kennedy. Kennedy taught constitutional law at the University of the Pacific's McGeorge School of Law in Sacramento. He also was in private practice in Sacramento, and in that capacity had done legal work for members of Reagan's staff, according to the Supreme Court Historical Society's online biography of Kennedy. He went on to help Reagan draft a proposed ballot initiative to limit state powers to tax and spend.
The initiative failed but served as a precursor to the enduring Proposition 13 limiting property taxes.
Kennedy has by no means turned out to be the most liberal member of the court, or even of the Republican appointees who comprise seven of its nine current members. Justices John Paul Stevens, a Ford nominee, David Souter, a nominee of President Bush's father, and Sandra Day O'Connor, a Reagan nominee, all have faced conservative criticism for siding with Democrat-nominated justices over the years - including the two now on the court, Ruth Bader Ginsberg and Stephen Breyer, both nominated by President Clinton.
Kennedy was with the majority in Bush v. Gore, the case that paved the way for President Bush's election to be validated in 2000. Kennedy also agreed with a 5-4 majority in a 2000 case upholding a Florida Board of Regents policy that state university employees said unfairly discriminated against older workers. In another 2000 case, he sided with the dissent that argued that a Nebraska law banning "partial-birth abortion" should not be struck down. He also has written majority opinions with which liberals disagreed.
But Kennedy has not been as reliable a conservative as Justices Antonin Scalia or Clarence Thomas, or Chief Justice William Rehnquist.
Had this year's juvenile death penalty case been the first instance in which conservatives felt Kennedy betrayed them, it might have been one thing. But Kennedy also had written the opinion in Lawrence v. Texas, a 6-3 decision in 2003 invalidating states' anti-sodomy laws, which gay marriage opponents feared would pave the way for that, too.
Kennedy in 2002 wrote the majority opinion in Ashcroft v. Free Speech Coalition, throwing out the Child Pornography Prevention Act of 1996, which banned sexually explicit images that through technology depicted minors without actually using children. "The government cannot ban speech fit for adults simply because it may fall into the hands of children," the opinion said.
Kennedy also wrote the 5-4 opinion in Lee v. Weisman, a 1992 opinion that prayer at elementary and secondary public school graduation ceremonies was unconstitutional. Kennedy also sided with the majority in Planned Parenthood v. Casey, a 1992 case upholding abortion rights and Roe v. Wade.
"It's not just that we oppose these decisions. It's that they're doing things I do not believe the court should be able to do," Schlafly said of several of Kennedy's opinions. "They're rewriting the Constitution, claiming it's a living and evolving document. I compare a role of the judge to a baseball umpire. The umpire cannot change the rules of the game."
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