Kennedy Calls on Congress to Stop Playing Politics With Judicial Confirmations

"The cases we take are ones in which we think the guidance of the Court might be helpful because different [federal circuit] courts have disagreed about it."

Both Republicans and Democrats are guilty of narrow-mindedly obstructing the appointment of new federal judges, Supreme Court Justice Anthony Kennedy said April 10 in Caplin Auditorium. "I think it's time for the parties to come together," he said, and agree on a confirmation procedure that stops the short-staffing of the nation's federal circuit courts, which Kennedy characterized as overworked and under-appreciated.

"They had better start thinking about the dangers to judicial independence from insisting on certain political views," warned Kennedy, who received the 2003 Thomas Jefferson Foundation Medal in Law in ceremonies the next day.

"A good judge is someone who's willing to change his mind," he said, particularly when an abstract issue gets presented through a real victim and a specific context.

Kennedy, who spoke to constitutional law classes earlier in the day, talked about the workflow of the Supreme Court and took questions from students.

Described by Dean John C. Jeffries Jr. as a "pragmatic patriot" in his introduction, Kennedy charmed the audience with self-effacing humor. He recounted how, on first seeing his chambers he remarked to his wife that his hero Justice Benjamin Cardozo had once sat in the same chair and she retorted, "50 years from now it will still be called Cardozo's chair."

The court gets 9,000 petitions to hear as cases every year, according to Kennedy. Some 500 to 600 of those are nominated by individual justices for discussion and of those the court agrees to hear argument on roughly 90 to 100 per year. The court recesses in the summer, a time when Kennedy teaches at the University of Salzburg in Austria, and returns to duty in the fall, reinvigorated and with a new group of four law clerks each.

"We do not discuss cases before hearing oral argument," he said, "because we don't want cliques to form beforehand. This is the first time we know what each other is thinking.

"Basically, a good argument is one in which an attorney can participate in a discussion the court is having. We're what's known as a 'hot bench' in the trade," he said, referring to the justices' inclination to break in on lawyers with questions. "It's a half hour per side per case, plus we interrupt. It's all too short." Kennedy obviously prefers that style to the custom in Great Britain, whose more loquacious proceedings he mimicked good-naturedly.

"The cases we take are ones in which we think the guidance of the Court might be helpful because different [federal circuit] courts have disagreed about it," he said. "We're much better informed if we wait until there is a conflict over an issue. We know then what the issue is. Oral argument is important in our workload because that is when we make up our mind. These cases tend to be very close. That's why we take them."

Within 24 to 48 hours after hearing the oral arguments, the justices meet privately to deliberate over the case and vote, he said. "You have to be very forward-looking. You're going to be bound by your decision. It's very important to have the right rationale for a decision in order to get the largest majority behind it." The most important word at the Supreme Court is not freedom or liberty, but "five," he said, because it takes five votes to have a majority.

"When cases are decided there is a moment of awe when we see the system working," Kennedy said. "When an opinion is released we realize we are draining down a capital of trust. That trust is renewed by following the traditions of the Court and by showing that the Constitution has real meaning in the modern context. The law lives in the consciousness of the people."

In answers to questions he panned the two short-lived television shows that appeared last fall about the Court, saying their plots were "less than vacuous."

Asked if it is possible for the circuit courts to all agree and nonetheless be wrong, Kennedy answered, "The presumption is that if they all agree they are right, but it is frequently the case that one circuit is out of agreement and we rule in its favor."

On the subject of cameras in court he declared himself "a tower of Jell-O," holding on the one hand that the public would probably be impressed to see how "technical" the work of the court is and on the other that some justices strongly oppose the idea for fear lawyers making arguments will start playing to the press. In the end he was negative: "By excluding cameras we teach that we should be judged by what we write in making decisions." Kennedy stressed the distinctiveness of "the language of the law" and said learning that language was the purpose of a legal education. America's legal culture is a great national treasure, he said, and the envy of the rest of the world.

Remarks by Dean John C. Jeffries Jr. in Presentation of the Thomas Jefferson Memorial Foundation Medal in Law to Anthony M. Kennedy

April 11, 2003

Mr. Rector, Members of the Board of Visitors, Mr. President, and Distinguished Guests:

It is my honor and privilege to present Anthony M. Kennedy, Associate Justice of the Supreme Court of the United States and the 2003 recipient of the Thomas Jefferson Memorial Foundation Medal in Law.

Anthony Kennedy was born in Sacramento, California, in 1936. His father was a local lawyer who combined a typical small-town practice with lobbying work before the California legislature. His mother was a teacher and a civic activist. From an early age, young Kennedy seemed destined for a career in law. He knew fellow Californian Earl Warren as a family friend and spent many boyhood hours watching jury trials in local courtrooms.

Kennedy received a B.A. from Stanford University in 1958 and an LL.B. from Harvard in 1961. After graduation from law school, he entered private practice with the firm of Thelin, Marin in San Francisco. Two years later, in 1963, Anthony Kennedy married Mary Davis. Also in 1963, Kennedy's father died. Anthony and Mary Kennedy left the big firm and the big city and returned to Sacramento, where Kennedy moved into his father's place. He practiced law, first as a sole practitioner and then as a named partner in a firm he helped found, from 1963 until 1975.

In that year, President Ford nominated Anthony Kennedy to the United States Court of Appeals for the Ninth Circuit. At 39, he was the youngest Court of Appeals judge in the country at that time and one of the youngest ever to serve in that position. Kennedy sat on the Ninth Circuit until appointed by President Reagan to the Supreme Court of the United States. On February 18, 1988, he took the oath of office as the 104th Associate Justice of the Supreme Court.

It is a measure of the stability of that institution that fifteen years and three Presidents later, Justice Kennedy is only fifth in seniority. There have been only two appointments in the last ten years, and six in the last twenty. No matter how gifted or prominent a lawyer may be, no matter how ably and well a lower court judge performs the duties of that office, appointment to the Supreme Court is always a long shot. So many stars must be aligned that result becomes almost random. It's a little like being struck by lightning.

In Justice Kennedy's case, lightning had to work overtime. On the retirement of Lewis Powell in the summer of 1987, President Reagan nominated former Yale Law School Professor and conservative icon, Robert Bork. Professionally and intellectually, Bork was spectacularly well qualified, but to many Americans, he was also frightening. His conservatism was trenchant, and his personality seemed strident and unforgiving. After an extraordinarily public campaign against confirmation, the Senate rejected Bork by a vote of fifty-eight to forty-two.

President Reagan then nominated Douglas H. Ginsburg, a former Harvard Law School professor and Assistant Attorney General for Antitrust, who had recently been appointed to the D.C. Circuit. Ginsburg's nomination exploded after "friends" on the Harvard faculty leaked word that as a young professor Ginsburg had occasionally smoked marijuana.

The combination of Bork's perceived extremism and Ginsburg's reported indiscretion opened the door for Anthony Kennedy. The nation heaved a sigh of relief when President Reagan abandoned the quest for an ideologue and turned instead to a pragmatic conservative. Not only were Kennedy's views of the Constitution more moderate than those of Reagan's first nominee, but his personal style was ecumenical rather than confrontational. Leaders of both parties joined in celebrating a man with an instinct to unite, and the Senate confirmed his nomination without a single dissenting vote.

Justice Anthony Kennedy has now served on the Supreme Court for fifteen years. We hope and believe that he will serve for many more. But it is not too early to acknowledge his contributions to the Court and to this country. Justice Kennedy is conservative in the sense of being a traditionalist. He is not doctrinaire. He does not seek to reshape our nation to conform to ideological precepts. He respects history and the lessons of experience and the rule of law. His commitments are to the traditional American values, values which include not only fidelity to the core principles of our democracy but also recognition of our national capacity for growth and change. He respects individuals and the choices they make, and he distrusts coercion. His personal style is distinctly American. He is informal, friendly, open, and straightforward, and he has an instinct for fairness.

There are those who believe, in entire good faith, that our Constitution should enforce a rigid adherence to the specific beliefs and practices of the late eighteenth century. And there are those on the other side who believe, also in good faith, that the Constitution should be refashioned to create a brave new world. Neither camp will be wholly satisfied with the jurisprudence of Justice Kennedy. But for those who embrace both our past and our future, who believe that fidelity and change are essential to our strength, and that the truest and best hope for the peoples of the world springs from the best interpretations of the American experience, Justice Kennedy is a national treasure.

Justice Kennedy is a passionate believer in the genius of our federal system and in the protection of individual liberty secured by the Bill of Rights. He has served not only as a Justice of the Supreme Court but also, informally, as an ambassador for the American legal values. He has visited foreign lands and received many foreign officials to assist their efforts at securing for countries the benefits of the rule of law administered by an independent judiciary.

Justice Kennedy has also maintained a lifelong passion for teaching our citizens about law. For almost all of his adult life as a resident of California, 1965-1988, he taught constitutional law as McGeorge School of Law of the University of the Pacific. He is also a frequent lecturer and teacher of the Constitution to students of all ages.

Justice Kennedy, I hope you won't mind if we end on a personal note. The seat you occupy on the Supreme Court was held before you by Lewis Powell. Justice Powell was a Virginian, and many people in this room knew him well. Although the openness and informality of the California style and the reserved courtliness of Old Virginia might seem opposites, many who have known you both are struck by the traits you share — unfailing courtesy, kindness, generosity of spirit towards those who disagree, an abiding faith in the values of American constitutionalism and rule of law, and an unabashed optimism in the ability of our nation to find the right way.

No doubt you and Justice Powell would have disagreed on specific issues, but your broad commitments are exactly the same. It gave him great pleasure to see you take his place. And if he were here today, it would give him great pleasure to join with all of us in honoring you as the 2003 Thomas Jefferson Memorial Foundation Medalist in Law.

Justice Powell was alarmed by the nomination of Robert Bork and by the reaction to that nomination. He was appalled at the ideological provocation and retaliation on both sides. You he admired, personally and professionally, without reservation. No doubt you and he would have disagreed on some specific issues, but your broad commitments are exactly the same. It gave Powell great pleasure to see you take his place, and if he were here today, he would join with us in honoring you.