The swinger

In many controversial cases covering divisive social issues, Kennedy has been the fifth vote to swing a majority opinion, not the best way to sculpt vital national policy. He has not been invariably on the right in these cases, but mostly so, which heightens his influence and makes him the center of advocates' attention in pleading their cases.

Justice Kennedy is a product of the current confirmation process wherein potential justices are chosen for their ability to navigate the approval of the increasingly partisan Senate, which must confirm presidential appointments. If one has a reputation for writing about controversial issues, or advocating them, he or she has little chance for approval. Thus, quiet candidates generally are picked, lawyers the public doesn’t know — Souter and Breyer, for example. There are exceptions — Ginsburg and Sotomayor, for example — but Justice Kennedy is the prime example of an appointment that won approval because of his vanilla lack of positions. A Justice Brandeis would never make confirmation in this post-Bork era. To all our loss.

We are left with “swingers” like Anthony Kennedy to steer American jurisprudence for decades, alas.


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