Posted 9:33 AM by Robert

Which Way, Anthony?

I have still not made up my mind about Harriet Miers, but I continue to be surprised by some of the arguments and assertions being made in connection with her nomination. Consider these three examples, each written by a very sensible conservative with presumably nearly-adjoining offices:

John Fund (writing in OpinionJournal):

From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Brendan Miniter (writing in OpinionJournal):

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.

James Taranto (writing in OpinionJournal):

As this chart shows, Thomas and Scalia were in full agreement in only 68% of cases in the 2004-05 term; the two justices who most often agreed fully, William Rehnquist and Anthony Kennedy, did so 77% of the time.

Justice Kennedy replaced Lewis Powell on the Court. Powell is a justice universally described as voting to the left of Justice Rehnquist. Unquestionably conservative William Rehnquist and Anthony Kennedy voted the same way more any other other pair of justices - a full 77% of the time.

Yet we are to conclude that Anthony Kennedy hasn't moved the Court to the right and should be viewed for purposes of the Miers nomination analysis mostly as having often disappointed conservatives? Yes, Anthony Kennedy has sometimes performed badly, especially recently. And he has at least from Webster been much too sensitive to media considerations.

But 77% is still a very big percentage.