Tuesday, August 19, 2008

Where's the Kennedy Hate?

I've never had any major problems with Justice Anthony Kennedy myself, though it seems that others do. Consequently, Brooks Holland finds it odd that Kennedy didn't make either John McCain or Barack Obama's list of current justices they would not have appointed.

I do not find it that odd, personally (Justice Alito's omission from Obama's list is more glaring). Obama stated his opposition to Roberts, Scalia, and Thomas, while McCain rattled off Stevens, Ginsburg, Breyer, and Souter. In other words (again, with Alito as the exception), the respective right and left flanks of the Supreme Court. Politically, they couldn't go express discontent any further towards the center, because it would make them look radical: "Obama/McCain is so extreme on the judiciary, he wants judges even more liberal/conservative than Tony Kennedy, who actually voted to uphold Roe v. Wade/most abortion restrictions."

The only way either could have put ol' Tony on their list would be by himself, as an example of a judge who is too ad hoc or not principled or predictable enough. That would have been a gutsy move, and I'm not sure how it would have played out, but listing a straight left-to-right or right-to-left line of Justices ending in Kennedy would have been an unmitigated disaster for whoever tried to attempt it.


Unknown said...

Ah, but they can both be counted on not to praise Kennedy either, because the only people who really pay attention to the finer details of Supreme Court appointments tend to have more... definite opinions on a lot of matters than AMK one way or the other. So praising him doesn't send any persuasive messages to any court-watching constituency.

Anonymous said...

funny, seeing as how mccain voted to confirm souter. (& kennedy too.) just a thought.

PG said...

There's a big difference between the judges one votes to confirm (McCain also voted for the confirmations of Ginsburg and Breyer, who unlike Kennedy and Souter were Democratic appointees -- opposing Reagan and Bush I appointees would have been a bizarre move for a GOP senator), and those one would pick.

It was unfortunate for Obama to praise Scalia and Roberts for their intellect while saying Thomas was not a strong enough legal thinker at the time of his appointment. This is a common myth but not one I would have expected Obama to perpetuate.