WSJ: Religion and the Court - The instructive case of Anthony Kennedy.

Wall Street Journal ^ | October 11, 2005 | Editorial

[OESY]

...Allow us to recall the case of Anthony Kennedy....

Mr. Helms said to Judge Kennedy, "I think you know where I stand on abortion." Mr. Kennedy "smiled and answered, 'Indeed I do and I admire it. I am a practicing Catholic.'"...

"...Mr. Helms interpreted the response to mean that Judge Kennedy is opposed to abortion and would look favorably on any case in which the Court's earlier decision striking down the abortion laws of all 50 states might be overturned." Reagan nominated Mr. Kennedy, who dodged the abortion issue at his confirmation hearings. Mr. Helms voted for him.

And we know how that turned out. Justice Kennedy continues to be a devout Catholic.... But he was also one of the three Republican-appointed Justices who fortified Roe in Planned Parenthood v. Casey in 1992. More important for the future, he has been a leader on the Court in citing foreign precedents to justify overturning American laws (e.g., the juvenile death penalty), and he has expanded the "right to privacy" to overrule just about any state law he doesn't like.

...To put it bluntly, the right-to-lifers let religion and personal views on abortion color their judgment about Mr. Kennedy, and they bamboozled themselves.

In recounting this history, we aren't equating Ms. Miers with Justice Kennedy. We have no idea what Ms. Miers thinks about Casey, or any other Constitutional issue. The point is that what matters aren't Ms. Miers's personal views on abortion or what church she attends. What matters is what she thinks about the judiciary, and specifically whether she believes it has the limited, Constitutional role that the Founders intended. The White House could help its credibility if it focused on that question and stopped touting her religious beliefs.

[WorkingClassFilth]

Yep. Sez it all pretty good.

[jjm2111]

Don't pay attention to all those people behind the curtain. Drink the Koolaid! Bush says 'trust me' so we have to trust him! </sarcasm>

Please for the good of this country, just withdraw the damn nomination already.

[mosquitobite]

That's why I say those who think abortion is the only issue are as bad as the left. The Supreme Court isn't about ONE issue. If we get an originalist, we get someone who will undo Roe AND the other atrocities since FDR...

[Paloma_55]

What we do know, is that Bush selected her in the historical context of Kennedy and Souter. More importantly, Souter since his father had made that mistake.

What we don't know, is how she will turn out. Only time will tell.

But trashing her is not going to change things. The Dems will vote for her and enough Republicans will vote for her.

The conservatives do not hold enough sway in the Republican party to overcome the threat of a walk-out by John (the traitor) McCain and his band of 7 RINOS.

This is unfortunate, but it is reality. We should hope and pray that she turns out to be a rigid constructionist and not trash her.

[xzins]

I disagree. Her religious views are part of the package. And Kennedy was not on record saying what his were. His words could have been spoken by Ted Kennedy and not Tony Kennedy.

Miers, on the other hand, is on record supporting pro-life. She has donated to pro-life causes and has publicly stated her pro-life position. Just because she has no judicial paper trail in support means nothing.

That does not mean she will overturn Roe, but it does mean that she has more of a trail on this subject than did Kennedy. (BTW, she cannot do it by herself. In fact, even if she is pro-life, the life votes on the court would still be at best: Robert, Thomas, Scalia, and Miers.)

It's a moot point until the next scotus vacancy. And at that point anyone getting confirmed will also be careful not to have any judicial paper trail supporting pro-life. They wouldn't get confirmed by the McCain 7.

[NYer]

Catholic Ping - Please freepmail me if you want on/off this list

[mosquitobite]

And how will she rule on property rights? Assisted suicide? First amendment?

What about precident? Does she believe the SC rulings trump the actual Constitution, or does the Constitution say everything it needs to (plus amendments added BY THE PEOPLE)?

Abortion isn't the only issue we're dealing with here.

[xzins]

She will not make it through confirmation without supporting the notion of "precedent." No nominee will. She will have to say something along the lines of "settled law must be recognized." (Note: that doesn't mean it cannot be overturned. It just means that it's been considered law so long that it must be given due deference.)

Property rights and Assisted suicide and 1st amendment?

The president said that she believes in judicial restraint and is a constructionist. Since all the judges you like were vetted by her, and they all have that belief, why would she be different?

[GarySpFc]

As was reported by Tony Snow Kennedy lied through his teeth. Character is the single most important attribute and most of the justices nominated lack it.

Do you know who is considered by almost all to be the greatest justice to ever serve on SCOTUS? Did you realize this person had only briefly studied law? Did you know he did not have any judicial experience when he was appointed chief justice, and yet he is considered the person who had the most influence on Constitutional Law? Have you ever heard of John Marshall? His single greatest attribute, which has been lacking in many of the recent justices to SCOTUS was character.

John Marshall-Biography

Experience: No prior judicial experience. Marshall held many political offices at the state and national levels.

John Marshall was born in a log cabin on the Virginia frontier, the first of fifteen children. He was a participant in the Revolutionary War as a member of the 3d Virginia Regiment. He studied law briefly in 1780, and was admitted to practice the same year. He quickly established a successful career defending individuals against their pre-War British creditors.

Marshall served in Virginia's House of Delegates. He also participated in the state ratifying convention and spoke forcefully on behalf of the new constitution to replace the Articles of Confederation.

Marshall contemplated several offers to serve in the Washington and Adams administrations. He declined service as attorney general for Washington; he declined positions on the Supreme Court and as secretary of war under Adams. At Washington's direction, Marshall ran successfully for a seat in the U.S. House of Representatives but his tenure there was brief. Adams offered Marshall the position of secretary of state, which Marshall accepted. When Ellsworth resigned as chief justice in 1800, Adams turned to the first chief justice, John Jay, who declined. Federalists urged Adams to promote associate justice William Paterson to the spot; Adams opted for Marshall.

Marshall's impact on American constitutional law is peerless. He served for more than 34 years (a record that few others have broken), he participated in more than 1000 decisions and authored over 500 opinions. As the single most important figure on constitutional law, Marshall's imprint can still be fathomed in the great issues of contemporary America. Other justices will surpass his single accomplishments, but no one will replace him as the Babe Ruth of the Supreme Court!

http://www.oyez.org/oyez/resource/legal_entity/13/overview

[B Knotts]

Very good editorial, and precisely the reason I oppose this nomination.

[aimhigh]

Mr. Kennedy "smiled and answered, 'Indeed I do and I admire it. I am a practicing Catholic.'"...

So we have Kennedy, Thomas, Scalia. Any other Catholics on the court?

[BlackElk]

Although I have agreed with most of what you have posted on Harriet Miers, please note that Marshall may have been the single most destructive person ever to sit on the court. He created the "right" of SCOTUS to declare laws unconstitutional in Marbury vs. Madison which involved his own failure as Secretary of State to deliver a judicial commission to Marbury before Adams left office. Blowing right past that conflict of interest, Marshall found (in what was his new interest in empowering SCOTUS as its CJ) his own failures as Secretary of State fatal to Marbury's cause in order to create the power of SCOTUS reviewing federal legislation.

For decades, he served as the "dead hand" of the Federalist past trying to interfere with the actions of elected officials. Jackson despised him and Jefferson was no fan of Marshall either. The Federalist Party was the left force of the time centralizing power in Washington to beat the band.

[BlackElk]

Chief Justice Roberts is a Catholic. Kennedy, given his rabid support and voting for and cheerleading for the "well-settled" right to slaughter infants no longer qualifies whatever he may think.

[Sensei Ern]

"...I am a practicing Catholic..."

THe next question should have been, "how much more practice do you need before you become a professional Catholic that is pro-life?"

[Bar-Face]

Tank you. You put into words exactly what I think.

[AFPhys]

Quit the temper tantrum.

Miers' nomination is not going to be withdrawn.

[jjm2111]

"Miers' nomination is not going to be withdrawn."

Too bad for us. Nothing like inexperienced cronies on the highest court of the land. Former trust mes:

Blackmun

Kennedy

O'Connor

Souter

Do we really need another?

[AFPhys]

You're very very wrong to say "McCain 7" in the context of pro-abortion Republicans.

Take a look at this table:

National Right to Life Committee Scoreboard for Senators
Compiled from info at: http://capwiz.com/nrlc/home/

Senator	2005	2003-04	2001-02	1999-00
# of votes	1	11	3	9
DeWine (OH)	100	100	100	100
Graham (SC)	100	91	94*	95*	*=House/Reps
Warner (VA)	0	82	67	67
McCain (AZ)	100	82	33	67
Collins (ME)	0	45	0	0
Snowe (ME)	0	27	0	0
Chaffee (RI)	0	9	0	0
Avg All Senate	46	56.1	40.3	51.0
Avg.Republican	84	91.4	57.0	88.5

Four of these Senators are vote MUCH more PRO-LIFE than you are portraying, and would not be likely to ding Miers, or any other prospective judge, on the basis of their being ProLife.

[xzins]

The McCain 7 have made a pact with the devil. That pact says that the democrats can define a candidate as extreme and go ahead and filibuster them.

Since all of these senators have not protested that "Roe v Wade" is considered "settled law," any nominee that does not affirm that can legitimately be considered extreme.

The McCain 7 are then "promise bound" to support the Dem7 in filibustering that nominee.

So, given that context of what created the McCain 7, and that was the context I was addressing, I was correct to suggest that the McCain7 will not intervene.

They will not.