David Broder

Justice Anthony Kennedy: the swing vote who almost wasn't

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WASHINGTON — The most dramatic stories in any field of competitive endeavor are those that recount events that almost never happened. It's the scoreless ball games that end with a walk-off homer in the bottom of the ninth that linger in the psyches of winners and losers — not the 9-3 walkovers.

So it is in politics and government. Al Gore's loss to George W. Bush gnaws at Democrats because he came so close — a few hundred more votes in Florida or a couple thousand in New Hampshire and history would be different.

I've been thinking the past couple weeks about another close call that converted a seeming loser, a quiet California lawyer, into what may arguably be the single most influential arbiter of domestic policy in the land.

I am talking about Supreme Court Justice Anthony Kennedy.

Kennedy is an accident of history. A graduate of Stanford and Harvard Law School, the son of a popular Sacramento lobbyist, he was practicing in that city when, in 1975, California Gov. Ronald Reagan suggested his name to President Jerry Ford for a vacancy on the 9th U.S. Circuit Court of Appeals.

Kennedy was in his 12th year in a low-profile position there when the resignation of Justice Lewis Powell from the Supreme Court launched a titanic struggle. Reagan, by then the president, wanted to move the court to the right, and thought he had found the ideal nominee in Judge Robert Bork. But Senate Democrats launched an all-out war against the nomination and — with some help from the argumentative Bork — succeeded in denying him confirmation.

Then came a fight within the administration, with White House chief of staff Howard Baker, a supporter of Kennedy, being outmuscled by Attorney General Edwin Meese, who favored another circuit court judge, Douglas Ginsburg. But Ginsburg's nomination died quickly when he admitted having used marijuana.

It was only then — after that implausible scenario — that third-choice Kennedy was called to the White House and introduced by Reagan as his man.

It turned out to be successful beyond Reagan's wildest dreams.

In his almost 21 years on the high court, Kennedy has pursued a generally conservative course, but has deviated often enough to avoid ideological labeling. In recent years, and especially since the retirement of another moderate conservative, Justice Sandra Day O'Connor, Kennedy has emerged as the swing vote between well-defined blocs of four confirmed liberals and four staunch conservatives. So often does his vote decide the majority in 5-4 decisions that this has been correctly called "the Kennedy court."

Thus, the man who was the compromise choice for the Supreme Court has turned out to be its single most influential member.

What is more remarkable is that he has done so by fulfilling the expectations that Reagan and others had for him from the start. Many presidents have learned to rue their picks for the high court. John Kennedy thought he was getting a liberal in Byron "Whizzer" White. George H.W. Bush thought David Souter would be a conservative. Both were wrong.

But Kennedy was exactly what Reagan thought — "a true conservative," and "a courageous, tough, but fair" jurist.

The 1987 edition of the Almanac of the Federal Judiciary went further, describing Kennedy as "courteous, stern on the bench, somewhat conservative, bright, well-prepared, filled with nervous energy, asks many questions, good analytical mind, not afraid to break new ground, open-minded, good business lawyer, hard to peg, an enigma, tends to agonize over opinions."

None of those terms need revision 21 years later.

Because of these traits — and the close balance between the ideological blocs — Kennedy has had more influence on domestic affairs than any member of Congress and even more than the president. In the term just ended, he wrote the 5-4 opinions that limited the death penalty to cases of murder and that granted terrorism suspects access to the federal courts. He also was the swing vote on the decisions that struck down the District of Columbia's ban on guns and killed the provision of the McCain-Feingold campaign finance law benefiting candidates opposing self-financed millionaires.

In 2006 and 2007, Kennedy played the same central role in cases ranging from military commissions for detainees to gay rights, from abortion to police powers, from environmental regulation to affirmative action.

"There's nowhere else to go," Northwestern law professor Lee Epstein once told the Washington Post. "There is this giant hurdle called Kennedy."

Not bad for a third choice.

David Broder's e-mail address is davidbroder@washpost.com.

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Justice Anthony Kennedy: the swing vote who almost wasn't 07/04/08 [Last modified: Saturday, July 5, 2008 9:22pm]

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