Kennedy And The Other Kennedy

The WashPost is Kennedyville today, starting off with has a good analysis of the havoc Anthony Kennedy has caused in the "right-of-center bloc that Chief Justice William H. Rehnquist nominally leads" (nice of WaPo not to call it hard-right, as many politicians and leftybloggers do) (here) then turning its op/ed over to Ted Kennedy to lay down the increasing desperate Dem line on the nominations (here)

First, on Anthony Kennedy, WaPo Supremes-watcher Charles Lane details how Kennedy joined with the court's liberals to abolish the death penalty for juvenile offenders, to give local governments a green light to take private property for economic development and to endorse a broad theory of federal regulatory power that denied states the right to override a federal law against homegrown medical marijuana. And that's just this term. Lane found the right sources to put it all in perspective:

In a generally disappointing term for the right, some conservatives said the only bright spot in the court's Kennedy-supported leftward movement was that it will help them rally their base to urge President Bush to put a committed conservative on the court.

Op/ed-ing, Teddy Kennedy must have been drinking as he wrote (as if he wrote it). After all, he is wobbling in the straight-talk component of the political sobriety test when he writes:

Confirmation proceedings should not be partisan exercises or occasions for party discipline.

Kennedy is one of the key Senators to blame for allowing the confirmation process to become just that. And for those with short memories, he keeps up the partisan calls for party discipline even in this op/ed, with statements like:

Unfortunately, many of those whom President Bush has nominated to the lower courts in the past four years have wanted to remake the law to suit their own ideologies.

But, on balance, I find myself agreeing with Kennedy, but only because he's pontificating and misrepresenting himself at the same time:

The president should reject the pressure of the extreme factions of his party that want litmus tests for his nominee. This process shouldn't just be about whether the next justice would help roll back women's rights by overturning Roe v. Wade , the law of the land. It should be about something much more basic: protecting our core constitutional values for generations to come, the freedoms that we've fought for, bled for and died for.

Absolutely. It's about strict constructionalism, not writing law from the bench, and not being afraid of the likes of Kennedy.

Bush's post-election re-appointment of all his filibustered judicial appointees signals his eagerness to take on the Dems to recast the courts. Be looking for a conservative nominee shortly after the president returns from G8.

Note: For some interesting historical perspective, read "Prescendent from the Confirmation Hearings of Ruth Bader Ginsburg for the Conduct of Judicial Nominees," by Jay T. Jorgensen for The Federalist Society. Jorgensen points out that:

• No Supreme nominee appeared before the Senate Judiciary Committee prior to 1925, and appearances only became routine in 1955. The Senate saw its role as advise and consent, not dissect and grill.
• William O. Douglas sat outside the Senate hearing room but was not called. Sherman Minton was called, but refused to testify, saying his record stood for itself. He was confirmed.
  
• Senator "Dishonest" Joe Biden, that sleeze of opportunism, said in directing the Biden hearings that, "the Senate’s hearings, including the question-and-answer period between senators and the nominee, should not be a 'dramatic spectacle' or a 'trial.' Jorgensen goes on to say that "Biden emphasized that the nominee’s appearance before the Senate should not be invested with a make-or-break importance, as the Senate’s hearings are only one part of the confirmation process (particularly in instances when nominees have a long-standing public record that illustrates their qualifications and views)."
• Ginzburg steadfastly refused to answer senator's questions regarding how she might rule, but was treated graciously and approved ... despite her blatantly Leftist-leaning resume.