Man Without Qualities


Wednesday, October 12, 2005


Anthony Kennedy, And The Judge He Is Today

Was Anthony Kennedy a "stealth candidate?" Was he "transformed" after he joined the Court?

Solid Brendan Miniter (writing in OpinionJournal) says that Justice Kennedy was a "stealth candidate":
The shortcoming of stealth candidates has long been apparent. Anthony Kennedy, whom President Reagan nominated after Judge Bork's defeat, hasn't moved the court to the right.
Talented and perceptive David Frum comments:
There have just been too many instances of seeming conservatives being sent to the high Court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence. The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.
But regardless of whether one views Justice Kennedy as a disaster, is it correct that he was a "stealth candidate" or that he was "transformed" on the Court?

In my opinion, Anthony Kennedy was anything but a "stealth" candidate. According to his biography, he joined the Ninth Circuit U.S. Court of Appeals in 1975 - where he took what is often called a "narrow case-by-case approach" without broad conclusions and principles. In other words, his opinions were a complete mess, just as many of his opinions have been on the Supreme Court. He taught constitutional law at McGeorge - which almost certainly left indications of his more personal views, had anyone cared to investigate them thoroughly. At the time, many of his liberal Ninth Circuit "opponents" said they admired Judge Kennedy's Ninth Circuit opinions and proclaimed him "pragmatic and fair-minded." He was for many years a major player on the Sacramento social circuit and a "networker." Many "knew" him, and "everyone" liked him (dear God, Roberts!). He was appointed to the Supreme Court in 1988 - with unanimous Senate vote. So even the most liberal Senators voted for him.

One big problem with calling Kennedy a "stealth" candidate is that it implies that a full 13 years as a federal appellate judge, a stint as an academic constitutional law teacher, admiration by paleo-liberals Ninth Circuit judges, approval by the most liberal Democrats in the Senate, and the existence of a wide circle of friends familiar with his personality, legal views and politics just wasn't enough to indicate what kind of justice he would become. Really? Then what the heck is supposed to be enough? And who the heck is going to make the case for Justice Kennedy lacking "highest intellectual and personal excellence?" Not me.

I think Kennedy's likely propensities were apparent from well before he joined the Supreme Court, notwithstanding his highest intellectual and personal excellence. He was Ed Meese's friend at least as far back as 1966. It would be interesting to know just how open ended and thorough White House vetting actually was, but the true nature of such matters seem to be closed to history.

Nor does David Frum's claim that Anthony Kennedy was "transformed" by anger, abuse, sweet little inducements and blandishments make any sense at all. Such a "transformation" would have to have been completed in record time. Webster V. Reproductive Health Services, which affirmed the central holdings of Roe v. Wade and was quite clearly a product of the judge Anthony Kennedy is today, was decided July 3, 1989, where the Senate unanimously confirmed Kennedy on February 3, 1988 and he took the oaths of office a few days later. That means Mr. Frum's posited "transformation" was complete in less than a year and a half - the paint was probably still wet on the walls of Anthony Kennedy's new offices in the shiny white building at the base of Capitol Hill. Those must have been some jim-crackin' angers, abuses, sweet inducements and blandishments to work that fast. Perhaps Mr. Frum has a "transformation" in mind like something out of Invasion of the Body Snatchers (take your pick of the version), with Justice Stevens, perhaps, placing a quasi-liberal pod outside the new justice's door while he took his first in-office nap.

No. Anthony Kennedy was no "stealth candidate." Nor was he "transformed" by anger, abuse, sweet inducements and blandishments. There are no pod people. Something else went seriously wrong. For those interested in finding out what went wrong, the right place to start looking is Ed Meese and the long-ago vetting of Anthony Kennedy. But making up fancy, tart myths and names to explain the mistake that is Anthony Kennedy doesn't help answer the question of whether Harriet Miers should sit on that Court - a question I have still not answered in my own mind.

UPDATE: John Fund points out that there seems to have been a breakdown in the White House vetting process that produced the nomination of Harriet Miers. The whole disturbing column is worth reading. Some excerpts:

Not only did the vetting fail to anticipate skepticism about her lack of experience in constitutional law or the firestorm of criticism from conservatives, but it left the White House scrambling to provide reporters with even the most basic information about the closed-mouthed nominee. Almost every news story seemed to catch the White House off guard and unprepared. ....

A real vetting process involves sitting down with potential nominees and grilling them with hard-charging and probing questions that go beyond the existing paper trail--or, in the case of Harriet Miers, the lack of a paper trail. .... Even though several highly regarded female lawyers were on Mr. Bush's short list, President Bush and Mr. Card discussed the idea of adding Ms. Miers. Mr. Card was enthusiastic about the idea. The New York Times reported that he "then directed Ms. Miers' deputy . . . to vet her behind her back."

For about two weeks, [William K. Kelley, the deputy White House counsel who had been appointed to his post only the month before] conducted a vetting he has described to friends as thorough. It wasn't. A former Justice Department official calls it "barely adequate for a nominee to a federal appeals court." One Texas lawyer called by the White House was struck by the fact "that the people who were calling about someone from Texas and serving a Texas president knew so little about Texas." (Mr. Kelley didn't return my telephone calls.)

It is unlikely that the vetting fully explored issues surrounding Ms. Miers that are sure to figure in her confirmation hearings, such as her work as Mr. Bush's personal lawyer. Another issue will involve Ms. Miers's tenure as head of the Texas Lottery Commission ....
The failure to complete and act on a standard, thorough vetting of Kennedy, Souter and O'Connor probably explains their later performances on the Court a lot more than calling them "stealth candidates" or any insidious post-appointment "transformation" - by anger, abuse, sweet inducements and blandishments or otherwise. A bad vetting process doesn't in itself mean a bad candidate - as Mr. Fund notes with respect to Dick Cheney, whose own bad vetting for Vice President worked out fine. But a bad vetting does mean that the president doesn't have all the data he could have in evaluating the nominee, and greatly increases the odds that things will go seriously wrong.

My guess is that the vetting of Anthony Kennedy was abbreviated at the direction of Ed Meese. I also guess that the vetting of Sandra Day O'Connor was abbreviated in reliance on William Rehnquist, although obviously Mr. Rehnquist was not in a position to direct the White House to cut short her vetting. As for Souter, I am told he simply out and out lied to his prime vetter, Lee Liberman Otis, whose career has been severely impaired by the consequences. Was it nice of Justice Souter to lie his way to the top while damaging Lee Liberman Otis so much? No. Did Souter tell his friend Sununu what he was planning to do to Ms. Liberman? Sununu is said to be too arrogant to talk about the disaster. As Daddy Warbucks famously said, you don't have to worry about how you treat people on the way up if you're never coming down. Lifetime tenure assured Justice Souter - and every successful Supreme Court nominee - that he was never coming down. That makes the vetting process for Supreme Court justices even more important. Trust but verify. So it's very strange that the basic process seems to have been curtailed in the case of Harriet Miers, and probably with respect to several other Republican candidates now on the Court.

As far as I can tell, the Clintons didn't cut short their vetting. So perhaps it's not surprising that the two justices appointed by Bill Clinton haven't disappointed the Democrats at all. Sure Justices Breyer and Ginsburg seem to be mostly visionless technocrats. But they're also safe, liberal votes who don't get fooled or seduced.

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