Friday, April 14, 2006

Justice Kennedy Speaks Out

I've made no secret that I'm a fan of Justice Kennedy. And it's important to say that, because I don't think he has many. Liberals think he's too conservative, and conservatives think he's too liberal. In actuality, I also think he's too conservative as well, but I respect his clear passion for justice that really shines through in some of his more noteworthy opinions (Lawrence, Romer, Roper, Lee). I know better than to insist on absolute conformity with my personal beliefs as a precondition for respect.

In that light, I want to commend Kennedy for speaking out on the Darfur crisis in his keynote address at the American Society of International Law conference (H/T: Melissa Waters). He also apparently spoke on issues of social justice and the abandonment of civility in discourse.
In his keynote address to the ASIL Annual Meeting today, Justice Kennedy focused on the international crime of genocide, all but calling on the world community to do something to stop the ongoing atrocities in Darfur. It was a stunning -- and I thought compelling -- speech for a sitting justice.

As reported by the AP, Kennedy stated:

"It is the duty of the world to do more than watch," he said.

Kennedy said that after the genocide in Rwanda "the world wept but little, and then went on its way."
I was struck by the tone of Kennedy's remarks, which he delivered soberly and without reference to notes. They appeared to be from the heart -- the thoughts of a man genuinely troubled by the incivility of discourse in the world, with the persistence of extreme poverty, and with erosion in the rule of law. Kennedy demonstrated that he has been deeply affected by his experiences with judicial exchanges in Europe and in his more recent role on the UN special panel promoting access to justice for the poor.

Apparently, the trend for sitting Justices who attend the conference is to speak on the role of international law in judicial opinions. Kennedy is a particular lightening rod in this controversy, so I'm sure he could have said a lot (though that also may be the reason why he largely declined to speak). But while that debate is important, I think the themes Kennedy touch on transcend an ultimately minor point of jurisprudential wrangling.

I'm rather late to the party here, because this news broke on March 31st. But reading about this makes me even more proud to call myself a Kennedy supporter. We just seem to share the same values. Even though he's far more conservative than I am, I feel confident that Justice Kennedy does not let his political ideology or personal dispositions infect his sense of what is right. That's really important to me.

A lot of my liberal friends, even when they acknowledge the good Kennedy has done in Church/State and gay rights cases, say they can't forgive him for Bush v. Gore. I'm sorry, but while I too think that case was a travesty, it's time to get over it. Kennedy is a stellar Justice and a fine citizen. He deserves our support.


Anonymous said...

So is there ANY decision a Justice could make that would make the "get over it!" rebuttal unpersuasive, in your view? Or is there no decision, however bad, that would prevent you from being a booster forevermore, no matter how good subsequent decisions were?

I ask because I'm curious to know if the disagreement between us is that I think there can be unforgivable decisions and you disagree. Or if, instead, our disagreement is actually a threshold question: We both agree that some decisions are unforgivable (or at least take longer to forgive than seven years), and therefore the real disagreement is over whether Bush v. Gore was awful enough to qualify as unforgivable.

David Schraub said...

I'm really hesitant to label any case as completely, utterly, unforgivable. But in terms of the cases that I think might meet the standard, I definitely don't think that Bush v. Gore qualifies. It isn't a Dred Scott, it isn't a Plessy. I think it was a bad decision, but it didn't show the type of manifest disrespect for human worth that puts one on my permanent shit list.

You want to know in brief why I'm hesitant? If there is a list of "unforgivables" out there, Korematsu is definitely on it. You know who we're exiling from boosting as a result? Hugo Black, Felix Frankfurter, William O. Douglas, and Harlan Stone. That is painful. Black, the author of Engel v. Vitale? Stone, the author of Carolene Products famous "footnote 4"? Douglas, the Court's great "liberal lion" for 35 years. Frankfurter, who, for all the decisions he made that I can't stand, was one of the big intellectual heavyweights in Court history (and a crucial player in constructing and defending New Deal Liberalism). Korematsu is definitely worse than B v. G, I don't hate every Korematsu-ite, hence, I can't hate B v. Gers either.

Anonymous said...

Well, I can definitely see your point.

And yet... I'm not sure that I'd rate the absolute contempt for democracy in favor of pure partisan power-mongering - which is what I think BvG reasonably represented - as being as minor a transgression as you do.

And if someone said to me, "I can see that Black did a lot of things that are admirable, but I still can't forgive Korematsu," I don't think "get over it!" would be the right response.

I'm not saying that there's not a lot to admire about Kennedy. Clearly, there is. I've read his decisions and cheered, at times. But I'm not "over it" yet. And the fact that so many Americans do get "over it" so easily is, I think, a major reason that there is so little resistance to the corruption of our electorial system.