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Confirmation ConsternationJustice Kennedy speaks out on judicial confirmation deadlock.

By Dahlia Lithwick
Posted Monday, April 14, 2003, at 11:07 AM ET

Attending a speech by a Supreme Court justice is generally just slightly less interesting than perusing the Federal Reporter. With the exception of Justice Antonin Scalia, who increasingly uses his public-speaking opportunities to erupt on some issue of church and state, most justices tend to speak in vague generalities about the workings of the court; to reassert that judges should do their speaking only in the form of judicial opinions (remind me again why they are giving speeches?); and to tell funny, charming anecdotes about justices who are dead and thus unable to defend themselves.

A speech by Justice Anthony Kennedy last week at the University of Virginia Law School almost proved this rule. He did funny British accents; he did Justice William Brennan. He dismissed last year's Supreme Court TV shows as "vacuous, insipid, and improbable." He offered a credible, if ultimately unpersuasive riff on how there are no "cliques or cabals" among the justices and managed to charm and amuse without saying anything political, ideological, or controversial.

Which is why his off-the-cuff comments on the judicial confirmation shenanigans bear repeating: Kennedy was remarkably candid in asserting that there is a crisis in the lower courts—that shrinking numbers of judges are being asked to decide growing caseloads and that the slowdown in confirmations is devastating their ability to do their jobs. He was equally candid in opining that "both parties have been guilty of this" and that there is definitely some "payback going on here." And he made the best case I have heard thus far for limiting the Senate's "advise and consent" role to something that falls short of a veto based on ideological litmus tests. Calling it a danger to judicial independence for senators to insist on nominees with specific views, Kennedy made an eloquent case for a judge's highest authority still coming from "the ability to change his mind." Urging that judicial independence is a creature unlike any other, Kennedy stressed that becoming a judge necessarily alters one's fixed ideology, simply because, once you hear a case, "suddenly, there's a real person there."

One of the nicest things that can be said about getting a Supreme Court justice out of the black robes and blinking into the bright auditorium lights is that there's a real person there as well. The members of the high court should be a little more willing to weigh in on the crisis facing their colleagues on the bench; more public shaming from The Brethren might just make a difference in the Senate.

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Dahlia Lithwick is a Slate senior editor.
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Remarks from the Fray:

Lithwick suggests that ideology is a counter-productive filter for senators to apply in exercising their advise and consent role. Yet ideology has increasingly become a crucial factor used by administrations in deciding who to nominate in the first place. If judges are being nominated largely because of their right-wing (or left-wing) credentials, how can the senate properly vet them (and act as a check on the polarization of the judiciary) without taking ideology into account? Is Lithwick saying that "advise and consent" should merely act as a competence filter, and that beyond that limited standard, administrations should simply get to fill all the openings without limit? That would certainly solve the judicial workload problem, but it would be a pretty dramatic constitutional revolution (and would probably result in an ever more polarized judiciary, as each party would be increasingly rewarded for appointing only its most reliable ideologues during its windows of owning the white house). Alternately, maybe we're just in a transition period, where the executive branch is still testing the limits of the nomination power, and hasn't yet learned that you can get more appointees approved if they tend closer towards the center of the political spectrum. It takes (at least) two to make a traffic jam.

--JWorth

(To reply, click here)


There is a substantial irony in Justice Kennedy's comments concerning the confirmation process. Justice Kennedy became a justice because of the increasing politicization of the Supreme Court. At best he is a mediocre man who rose to the court because he had little "paper trail" upon which to criticize his nomination. If my memory is correct, he was nominated after the defeated Bork and the drug challenged Ginsburg, (Douglas not Ruth). The giants of Supreme Court history would never have a prayer of being considered for the contemporary court. We are all worse off for that fact. The historical debate about who started this fight is of little value. It probably began in 1968 when Lyndon Johnson tried to finagle the center seat for his pal Abe Fortas. We have been on an increasing political treadmill ever since. Our judiciary has little other than moral authority to support its decisions. The continued erosion of that authority does not bode well for our future.

--HLMencken-2

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(4/15)

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