Anthony Kennedy for Chief Justice? (FReeper suggestion spurs National Review debate)

National Review On-Line, Free Republic ^ | 7/8/05 | dangus

[dangus]

Yesterday, I sent this letter to Kathryn Jean Lopez, an edited version of a vanity column I posted on Free Republic:

{start} I propose that Bush should consider nominating Anthony Kennedy to be Chief Justice of the Supreme Court.

The Democrats are clamoring for nominations in the mold of O'Connor. Kennedy, while having a different focus than O'Connor, is just about exactly as conservative or liberal as O'Connor. And, until a third vacancy occurs, Kennedy will be the swing vote on just about every issue, so Kennedy will be the de facto chief of the Supreme Court anyway.

Essentially, it buys Bush a perception of centrism at almost zero cost. The public perception will be of a perfectly balanced court being created by Bush: four liberals, four conservatives, and the Chief Justice as the ideological centrist. And yet, Bush will have steered the court as hard to the right as is presently possible. {finish}

Ms. Lopez published it, noting that it was "so wierd you just have to wonder." (I hope she meant that you just have to wonder that it might work. :^D)

Ed Whelan had this response:

{Start} On Kathryn’s post: I would much prefer Ruth Bader Ginsburg to Anthony Kennedy as Chief Justice. Seriously.

I don’t think short-term political calculations should lead the president to nominate a Chief Justice whose approach to judicial decisionmaking is far afield from what the president has endorsed. So I see Scalia and Thomas as the only acceptable candidates for elevation in the event of a Rehnquist resignation.

But if the president were to consider the political calculations that Kathryn’s correspondent raises, Ginsburg would be a better choice than Kennedy. First, I fear that making Kennedy Chief would cause him to move further left to try to establish a “Kennedy legacy”. Second, nominating Ginsburg rather than Kennedy would make any overall package appear more moderate. Third, nominating Ginsburg would reduce any undue diversity-driven incentive to nominate a woman to replace O’Connor. (There are, of course, plenty of women candidates who would be excellent selections on the merits.)

My guess, though, is that the Chief would be appointed from outside the Court. {finish}

I have just sent this response:

{Start}

Dear Ms. Lopez and Mr. Whelan,

I would like to thank you, Ms. Lopez, for giving voice to my suggestion. I would also like to respond to Mr. Whelan's thoughtful criticism of it.

Mr. Whelan argues that according to my logic, it would be even better to nominate Ruth Bader Ginsburg as chief justice. But It was not my goal to appease the left; that would only look like weakness. Rather, the point is this: Many would like an ideologically balanced court; many would like to move the court as far to the right as possible. The appointment of Anthony Kennedy would highlight that the means to both these goals is one and the same. Nominating Ginsburg would look like naked and insincere political appeasement.

Further, it is my understanding that the Chief Justice administers the entire judicial system, and has first crack at writing for the majority (when he is in the majority). Kennedy would be a respected and conciliating administrator. And while I might prefer Scalia to write a conservative majority's opinion, whenever Kennedy did side with liberals, it would be advantageous to have the decision written by his more restrained liberalism.

Lastly, I doubt that being Chief Justice would shift Kennedy to the left. Kennedy knows better than we do that the odds of a liberal retiring within this presidency are strong. I suspect he'd rather be remembered as the forger of a new, center-right coalition than the vanquished last gasp of liberalism. Personal pride would not be needed for such a motive, but rather a sense of stability for the court.

Sincerely [Name witheld] {finish}

[dangus]

Comments?

[Dr Snide]

I think Mr. Whelan's comments about Kennedy possibly moving to the left of where he is now is a legitimate concern. In this regard Ginsberg is not a concern since there is nowhere more left for her to go, and perhaps with her promotion she may at least attempt to appear moderate (admittedly a long shot). While not likely, a scenario that at least deserves some discussion I would think.

[Keith in Iowa]

Here's my wild*ssed idea if Ginsberg goes: Nominate Hillary.

It would be replacing one liberal hag with another...and take her out of the run for the WH...and imagine those confirmation hearings...

[dangus]

I share the concern that Kennedy *could* move left. I just think that he is as likely to move right.

[fieldmarshaldj]

Who is the last justice who actually moved right ?

[dangus]

>> Who is the last justice who actually moved right ? <<

My suspicion is that judges tend to move towards where they see the majority to be. That's always been to the left. It will now be to the right.

[AZLiberty]

Knowing that she couldn't be confirmed, she would turn it down but add it to her conservative resume.

[Southack]

Your idea is politically wiley, but too unpredictable.

Why gamble?! We have the Majority in the Senate. We own the Presidency, and we are looking at FOUR SC vacancies: O'Connor, Rehnquist...plus Ginsberg is ailing and Stevens is 85 already.

At this point we can have 6 Conservatives on the SCOTUS, and one of those will be CJ. This will leave 3 liberals and/or moderates to prevent groupthink from setting in, as well as keeping our Conservative SC heroes on their toes (i.e. perfection). Liberals will continue to have a voice, to be fairly heard...and outvoted routinely 2 to 1.

Life is good.

[dangus]

I enjoy sparking debate. :^D The first post was amazing to see the range of opinions come from Freepers. I was called an idiot and a genius.

[fieldmarshaldj]

No, no, that's not what I meant. I mean who was the last justice who (on their own accord) moved rightward in judicial temperament ? I was thinking perhaps the JFK-appointed Byron "Whizzer" White. Then, of course, a "JFK liberal" would be Conservative by today's standards. White probably remains the benchmark for being one of the best justices nominated by a Democrat perhaps in the 20th century (and FAR better than many Republican nominees).

[Waco]

Kinda looks like the SCOTUS really kicked the RATS in the butt, with these 2 VERY unpopular rulings. Puts them in the position of advocating MORE of what everyone is so upset about to start with.

[Defiant]

Byron "Whizzer" White.

[BigSkyFreeper]

Mr. Whelan is right. Nominating Kennedy to the Chief Justice spot is no different than nominating Ginsburg. I believe that's why K-Lo thought it was weird, and Whelan in a roundabout way, disagreed with you.

[SteveH]

The ideal hard right alternative nomination from the sidelines would be a conservative black female judge. I'd like to see a list of those from which to consider choices.

The larger problem will always be filling the net vacancy. Shifting around a Kennedy or a Ginsburg I don't believe will gain credit with Democrats because Democrats simply will refuse to give any credit, and fight the hard right net vacancy nominee no matter what.

Presuming this, then the ideal would be to nominate a black female judge to the chief justice for the added medai visibility it would give to the perceptions of Democrats being racist in the hearings.

The more media coverage of Democrats hassling a black female judge nominee, the better. The higher the position, the more coverage, the better. If she wins, conservatives win. If she loses, Democrats lose big time in the next election cycle. So reserving the chief SC justice slot for a high-noon shootout using a black female conservative judge is the best of all possible worlds.

[dangus]

Frankly, I'd LOVE to see Bush nominate Janice Rogers Brown.

[Defiant]

I see you answered your own question with the same answer I gave. I don't know of another one who moved farther right than they were when they started out in the last 100 years, with the possible exception of Clarence Thomas. He has become more conservative than Scalia, whereas when he started, he was more of a moderate, a guy who had worked for Danforth and in the EEOC.

[Holden Magroin]

Anything less than impeaching Anthony Kennedy is not worth considering. Kennedy is an insecure wimp who panders to elite (i.e., liberal) opinion and thinks the Constitution he swore to uphold is quaint. I could not stomach this man as a judge in small claims court. Contrary to what you believe, making Kennedy Chief Justice would make things worse because then he would want to stay on the Court until he dies. If someone else is made Chief Justice, Kennedy would have incentive to retire earlier.

[BigSkyFreeper]

Right. We shouldn't be wasting time fiddling around with Kennedy. We need to hit the Democrats hard where it counts. Make them expose themselves as the racist party they are, and they'll commit political suicide.

This nonsense about Democrats helping raise up the standards of the the minorities, the elderly, and the poor is just that, nonsense. The only thing the Democrats are concerned about helping is to help keep minorities downtrodden, the elderly scared witless, and the poor poorer.

[SkyPilot]

[FreedomCalls]

Here's my wild*ssed idea if Ginsberg goes: Nominate Hillary.

No, nominate her husband, Bill. Seriously. Republicans always nominate someone they think will be conservative who then turns out to be a liberal on the Court. Bill, I think, would be the opposite. Everyone would expect him to vote liberal, but I'd bet he would turn out to vote conservative on some issues. He "triangulated" the Dem Party to the center-right you remember. He can feel the ideological winds and if he wants a legacy he realizes that the right is going to write it, not the left. The winners write the history books not the losers.

[gop_gene]

I see you answered your own question with the same answer I gave. I don't know of another one who moved farther right than they were when they started out in the last 100 years, with the possible exception of Clarence Thomas. He has become more conservative than Scalia, whereas when he started, he was more of a moderate, a guy who had worked for Danforth and in the EEOC.

Just tossing this out in the wind, but I wonder if the way the democrats treated him during his hearings had anything to do with it? For myself, I know if I got treated in such a manner, you can bet your bottom dollar I'd hold a grudge forever and do anything I could to make the opposition gnash their teeth.

[Congressman Billybob]

As an impetus to an interesting but irrelevant discussion, perhaps your suggestion was worthwhile. But in the real world, it and its Ginsburg variation are both foolish and irrelevant.

Any student of the Court knows that the Chief Justice has a minor but still valid leadership role in the Court's decision-making. Since the Chief Justice rides herd over eight other imperious egos, the role is like Majority Leader of the Senate, but more so.

The Chief also has an administrative role with respect to all of the federal courts.

For both reasons, it is sheer folly to consider having anyone who does not understand, respect and enforce the Constitution, in the role as Chief Justice. And that's the name of that tune. Scalia should replace Rehnquist for maximum effect in this regard.

Congressman Billybob

Latest column: "Hi Ho, Hi Ho, It's Off to Jail I Go"

[PzLdr]

When pigs have wings, and Kennedy has evolved to have their brains [and a backbone would make a lovely Christmas gift].

[Jim_Curtis]

If you promote a liberal you promote his ideas. If you promote A.Kennedy to a position of respect than his ideas/opinions will be perceived as being more important than they would otherwise. The left would exploit this perception.

[Sir Francis Dashwood]

I could not stomach this man as a judge in small claims court.

Neither could I. Then again, since you mention it, I have an issue with small claims courts...

Article the ninth [Amendment VII]

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

I think small claims courts are unconstitutional...

[Ol' Sparky]

Kennedy can be the chief justice so long as all appointments to the court are Scalia-like originalists. That's what the left should be forced to settle for.

[BigSkyFreeper]

The last thing Conservatives need to do is reward either one of the Clinton's with anything.