Justice Kennedy Draws Conservative Ire

He wasn’t President Reagan’s first choice for the U.S. Supreme Court – or his second choice for that matter – and plenty of conservatives have never let him forget it.

Seventeen years and a handful of decisions later, Justice Anthony Kennedy – a conservative by background but a swing vote on social issues _ has become the poster boy, on the part of those calling for President Bush’s most controversial judicial nominees to confirmed by the U.S. Senate, for why the president should get to install judges he really wants rather than capitulate to liberals and moderates.

Pressure on Republicans to employ the so-called “nuclear option,” a rule change that would stop Democratic filibusters against Bush judicial nominees, picked up in March, just after Kennedy wrote the court’s 5-4 opinion striking down the use of the death penalty against juvenile offenders. To some, this was just one more insult by him in a string of decisions on gay rights, pornography, school prayer and abortion.

In that latest ruling, Roper v. Simmons, Kennedy looked to international law and to the nation’s “evolving standards of decency.” This simultaneously enraged capital punishment advocates and nationalists who say that what happens in other countries should have no bearing on how a judge interprets U.S. law.

Calls for Kennedy’s impeachment followed, from high-profile conservatives including Phyllis Schlafly, who said in an interview that Kennedy’s most recent ruling was “a tipping over the edge.” House Majority Leader Tom DeLay, in a recent interview on FOX Radio, called Kennedy’s methods “outrageous.” Dozens of activists have condemned Kennedy in escalating rhetoric; at least one well-publicized recent speech on judicial activism invoked comments by tyrannical Soviet leader Joseph Stalin, with overtones of a death threat.

Kennedy “really has highlighted what kinds of judges we want to have: judges who’ll interpret the Constitution as it’s written, or judges who’ll look to world opinion,” said Gary Marx, executive director of the Judicial Confirmation Network, which advocates that all of Bush’s judicial nominees deserve to come up for full Senate votes. Marx previously was a coalition organizer for the president’s 2004 re-election campaign.

“If you go to a lot of Third World Catholic countries, they’ll tell you abortion should be outlawed,” Marx said. “Whatever opinion you want to find, you can find it in the world. The only places he wants to go for world opinion are places … that agree with the outcome he’s looking for.”

Erick Erickson, a Macon, Ga., lawyer and political consultant who serves as a director for the blog RedState.org, on which Kennedy has been a hot topic lately, put it more pointedly.

“This all has come to a head over conservative frustration,” Erickson said in a telephone interview. “Conservatives feel they worked their butts off to get the president elected, to increase the Senate majority, preserve the House, and now you’ve got a bunch of old guys on the Supreme Court who are refusing to step down and Democrats in the Senate refusing to move forward with the president’s nominations.

“My suspicion is if Democrats dropped the filibuster fight, then all of the conservative wrath would be fixated on the Supreme Court,” Erickson said. “That’s the last holdout.”

Justices rarely grant interview requests, and a court spokeswoman said Kennedy would not agree to an interview for this story.

But Kennedy’s many defenders in the legal community say that there are no grounds for his impeachment. And they suspect the resentment toward him all these years has as much to do with who he isn’t as with what he is.

Reagan settled on Kennedy for the lifetime post on the nation’s high court only after the administration’s first choice, Robert Bork, was rejected by the Senate as being too extreme. Reagan’s second choice, the also-conservative Douglas Ginsburg, dropped out because of revelations of his marijuana smoking. From the start, everyone with a stake in the nomination knew Kennedy was no Bork. He was confirmed easily in 1988.

“I think part of what causes this is people can count to five and they realize if Bork had been confirmed he would have been a decisive vote on some of these key issues,” said 9th U.S. Circuit Court of Appeals Judge Alex Kozinski, a conservative Reagan appointee who served as Kennedy’s clerk 30 years ago when Kennedy was starting out as an appellate judge.