Justice Kennedy: The Great Liberal Hope

An excellent post on Eminent Domain dubs him (with no apologies to Mark Knopfler) “The Sultan of Swing.”

Yes, the subject is Justice Anthony Kennedy, nominated as a conservative by Reagan, who has drifted to the left over the years.

For liberals, this just means that he (like O’Connor) has “grown” or “evolved” into a better understanding of the “complexity” of issues.

For conservatives, he is somebody who has been subverted by the liberal media establishment (and one might add, the liberal academic establishment and the liberal interest group establishment).

There is a lot of evidence to support the conservatives, such as the media’s treatment of Supreme Court Justices:

Federal appeals-court judge Laurence Silberman once shrewdly described this media practice as the “Greenhouse effect.” He was referring to the fact that a Justice who voted in politically correct fashion would receive laudatory coverage by New York Times reporter Linda Greenhouse, the alpha liberal of the Supreme Court press pack. If the Justice typically joined with conservatives, however, he’d soon find himself characterized as somebody else’s clone, or not very bright, or a traitor to his race, or some other derogation.

Justice O’Connor’s early years were widely demeaned in this manner, as was the late Justice Harry Blackmun, who was derided as the “Minnesota Twin” of then-Chief Justice Warren Burger before he came around and wrote Roe. Judge Silberman’s point is that such media hazing has a larger impact on some Justices than is widely believed, especially given the desire many of them have to be revered and to fit into Washington’s social whirl.

One could add to this the fact that, if one is a liberal-voting judge one is likely to be greeted as a hero in law schools and given honorary degrees at the nation’s universities.

Eminent Domain then rhetorically asks:

Would this really happen? Would a Supreme Court Justice vote to please the media? Well, Mark Tushnet discusses that in A Court Divided . . .

Kennedy’s concern for his public persona is suggested by the views of a former Kennedy law clerk, recounted by Rosen: Kennedy “would constantly refer to how it’s going to be perceived, how the papers are going to do it, how it’s going to look.” p. 176

But the good news, as pointed out by the Wall Street Journal, is this:

As Justice Kennedy’s complaint [about the media] last week suggests, the judicial left knows exactly what it’s doing in singling him out. Liberals seem to think they won’t be able to intimidate new Justice Samuel Alito and Chief Justice John Roberts. Which is why liberals will continue to treat Justice Kennedy as if he’s the pigeon in one of B.F. Skinner’s behavior-modification experiments.

The message to Republican presidents is crystal clear (although it seemed to escape George Bush during the Harriet Miers fiasco). Appointing conservative hacks won’t do. They will just turn into liberal hacks — or at least into “moderates” who won’t cross the liberal elites on any real hot buttom issue.

Conservative judicial appointments have to be absolutely top-notch both morally and intellectually. Since George Bush might get another chance at a Supreme Court nominee, we do hope he has learned this lesson.