Posted on 06/28/2002 12:48:20 PM PDT by Jean S
The end of a Supreme Court term means speculation about retirements and new appointments. One rumor in particular must be quashed.
No justice announced retirement this year. The court’s 2001-02 term, which closed on June 27, was the eighth with the same lineup, the longest stretch without a vacancy in more than 175 years. Only four American Presidents have not made even a single appointment, and two of them did not serve a full term. The odds are a vacancy will happen soon.
Most court watchers say the next retirement will likely come from among Chief Justice William Rehnquist and Justices John Paul Stevens and Sandra Day O’Connor. President Richard Nixon appointed the 78-year-old Rehnquist in 1972. President Gerald Ford appointed the 82-year-old Stevens in 1975. And President Ronald Reagan appointed the 72-year-old O’Connor in 1981.
Efforts to influence Supreme Court nominations come from many quarters. The far left started early, sending a shot across President Bush’s bow last year by roughing up Atty. Gen. John Ashcroft during his confirmation. They continue assaulting appeals court nominees such as Charles Pickering, defeated in the Judiciary Committee, and D. Brooks Smith, narrowly approved by the Judiciary Committee and awaiting a full Senate vote. At the left’s direction, Senate Democrats won’t even consider other nominees, such as Miguel Estrada, who have Supreme Court potential.
But campaigning from within the Supreme Court is rare. Speculation is rampant that Justice Anthony Kennedy, a 1988 Reagan appointee, wants to be chief justice if Rehnquist steps down. Reporting on Kennedy’s very public participation in projects such as the "Dialogue on Freedom" with First Lady Laura Bush, the Chicago Tribune in February quoted one court watcher who said, "I’m sure he wants to be chief justice."
As recently as June 17, a front-page Washington Post article quoted another court watcher as saying that "everyone thinks, believes, speculates, that Kennedy wants to be chief justice."
Elevating Kennedy would be a huge mistake. Some say he is a "centrist" because he is in the court majority more than any other justice. The court, however, is closely divided between activist justices who believe they can make law and restrained justices who believe they may only interpret the law. Being in the majority all the time simply means Justice Kennedy has dual jurisprudential personality syndrome.
President Bush has taken sides in this debate. Sending his first nominees to the Senate on May 9, 2001, he said: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. . . . My nominees will know the difference." The question is whether Kennedy is truly that kind of judge.
Most Supreme Court decisions don’t help answer this question and most of the rest are unanimous. But in the cases that count, the ones that involve important constitutional issues and where the two different positions—activist and restrained—are clear, Kennedy has proven he is not the kind of judge President Bush says he wants to appoint.
The first batch of cases are those in which Kennedy authored the opinion for the court. On May 16, 2002, Kennedy wrote the opinion in Ashcroft v. Free Speech Coalition striking down a federal law banning virtual child pornography. Congress intended the statute to cover only a narrow category of material and, if he had respected Congress, Kennedy would have upheld it. Instead, Kennedy effectively re-wrote the statute to give it a broad focus so that he could strike it down. All the activists joined him.
Last year Kennedy wrote the opinion in Legal Services Corporation v. Velazquez striking down Congress’s restriction on taxpayer-funded lawsuits. All the activists joined him. In dissent, Justice Antonin Scalia wrote that Kennedy had invented "a novel and unsupportable interpretation" of the 1st Amendment and that the court’s decision had "no foundation in our jurisprudence."
In 1995, Kennedy wrote one of the most activist decisions of this century. In Romer v. Evans, the court struck down Amendment 2, a provision of the Colorado Constitution prohibiting special legal rights for homosexuals. The people of Colorado overwhelmingly passed it, but Kennedy knew better. He rejected out of hand the many reasons Colorado offered to justify Amendment 2. The measure was, he said, "inexplicable by anything but animus toward" homosexuals. That is, Kennedy said the people Colorado not only were bigots, but liars in trying to justify their bigotry. Scalia, joined by Rehnquist and Justice Clarence Thomas, dissented.
In 1992, Justice Kennedy wrote the opinion in Lee v. Weisman striking down clergy-led voluntary graduation invocations. He said students who simply stand in respectful silence were actually participating in a religious ceremony. Scalia, joined by Rehnquist and Thomas, dissented.
And in 1992, Justice Kennedy joined O’Connor and Justice David Souter in crafting the decision reaffirming a "right" to abortion and creating new regulations for evaluating abortion restrictions. As even honest abortion advocates admit, this is a political or social issue, but the Constitution has nothing to do with it. These activists wrote that the Constitution protects "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." They actually wrote that. The only Constitution containing such a right is the one Kennedy made up.
Other cases raising important constitutional issues clearly separate the activist justices from their restrained colleagues. Kennedy chose to side with the activists. On June 20, 2002, he joined Justice Stevens’ majority opinion in Atkins v. Virginia, declaring it unconstitutional to execute the mildly retarded. Stevens and Kennedy said that government action is "cruel and unusual punishment" under the 8th Amendment if it contradicts "evolving standards of decency." Again, only their made-up Constitution says that. Scalia, joined by Rehnquist and Thomas, dissented.
In January, Kennedy joined Stevens’ opinion in Equal Employment Opportunity Commission v. Waffle House. The court disregarded a federal statute encouraging arbitration instead of litigation for employment disputes and said the EEOC can obtain damages for an individual employee that he cannot obtain for himself. This time, Thomas wrote the dissent, joined by Rehnquist and Scalia.
Last year, in Kyllo v. United States, Scalia wrote the opinion for the court saying that using a thermal-imaging device to search a home for drug evidence without a warrant violates the 4th Amendment. Kennedy stuck with Stevens in dissent.
In PGA Tour v. Martin, Kennedy joined Stevens’ opinion saying that a sport is a "place of public accommodation" under the Americans With Disabilities Act and that judges have the power to decide the "essential elements" of golf. In this outrageous decision, Stevens and Kennedy said that professional golfers on the green are the same as customers in the pro shop. Scalia and Thomas dissented.
In Chicago v. Morales, Kennedy again joined Stevens’ opinion striking down an ordinance prohibiting known street gang members from loitering in public. Thomas, joined by Rehnquist and Scalia, dissented.
And in Santa Fe Independence School District v. Doe, Kennedy again sided with Stevens in declaring voluntary student-led prayer before a football game an unconstitutional "establishment of religion." Rehnquist, joined by Scalia and Thomas, dissented.
Justice Kennedy has taken sides. These and other examples reflect his belief that judges have virtually unlimited power. He has joined those activists who believe judges can make law, re-write the Constitution, and take command of the culture. He has thus clearly set himself against the kind of judge President Bush says he will appoint.
In a documentary about the court, Kennedy said that justices can use the years since the Constitution’s ratification to decide which provisions are good and useful and which ones are not. Scalia’s response to Kennedy in that film should be the same as President Bush’s to the thought of elevating Kennedy: "Don’t sign me up for that one."
That would be good, but I doubt that Clarence would be willing to suffer all that vilification again. I know I wouldn't.
I hate judicial activism.....the annoited ones are so arrogant.
That would be great , watching leftists twist over that one. I'd love to hear the race warlords in the congressional black caucus and the NAALCP's reaction to it
He is less intimidating a presence than Scalia, and younger.
Not to mention that more than one Senator would think twice about trying to rake Scalia over the coals in a hearing. The likely result would be less-than-optimal for the Senator.
It didn't stop them the first time.
Does the procedure for appointing the Chief Justice differ from that of a regular associate justice?
No. A vacancy in the Chief Justice position is filled like that of any of the associate justice positions. So, if the vacancy on the Court is for Chief Justice, then the president will nominate someone to be Chief Justice.That person may come from the ranks of the current sitting associate justices, as it did when President Reagan named sitting justice William Rehnquist to be Chief Justice in 1986. However, that has occurred only three times in our history, so the norm is that the president appoints someone not currently on the Court to fill a vacancy. A president will never automatically appoint the most senior justice on the Court to the Chief Justice position, and that has happened only once (Harlan Fiske Stone by FDR).
The Chief Justice position becomes vacant like that of any associate justice position, through the departure (retirement, resignation, death, or impeachment) of the sitting Chief Justice. The Chief Justice does not serve at the pleasure of the president. Indeed, he may well serve at some considerable displeasure of a president.
The Constitution spells broadly that the president appoints and that the Senate must advise and consent to the nomination. This means there will be a hearing before the Senate Judiciary Committee just as with other justice nominees. Their recommendation passes on to the whole Senate where a majority vote of those present is required to confirm the nominee.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.