Kennedy and the Court

http://www.newyorker.com/online/blogs/newsdesk/2009/08/jeffrey-toobin-kennedy-and-the-court.html

Jeffrey Toobin: Kennedy and the Court


The vote to confirm Sonia Sotomayor last month was sixty-eight to thirty-one—but the one senator who was missing may have had more influence over the Supreme Court than any in history. Edward M. Kennedy won election in 1962, voted on every nominee from Abe Fortas in 1965 to Samuel A. Alito, Jr., in 2005, and to an unprecedented extent shaped the composition of the Court itself.

Early in his tenure, in 1969 and 1970, Kennedy helped lead the fight to defeat two of President Nixon’s nominees, Clement Haynsworth and Harrold Carswell, both of whom lost by narrow margins. In 1971, Kennedy was one of only twenty-six senators to oppose the nomination of William H. Rehnquist as an associate justice. (Kennedy voted against Rehnquist for Chief Justice, too, in 1986).

Still, the summit of Kennedy’s influence on the Court—and perhaps his career as a senator—was his role in the fight over Robert H. Bork’s nomination in 1987. Kennedy was fifty-five at the time, his dreams of the Presidency having been put away for good nearly a decade earlier. At the time, Kennedy had little to gain politically by leading the opposition to Bork, but he did it nonetheless, and he did it with a passion that has defined Supreme Court fights ever since.

On July 1, 1987, the very day that President Reagan announced the nomination of Bork, Kennedy went to the well of the Senate and delivered these words:



It was crude and exaggerated, but it galvanized the opposition as nothing else, and no one else, could. Four months later, Bork was defeated by a vote of fifty-eight to forty-two, and Reagan nominated Anthony M. Kennedy in his place. Justice Kennedy has been no liberal, to be sure, but he has been the single vote that kept Roe v. Wade on the books, was the first Justice to recognize the rights of gay people, and imposed a restraining hand on President Bush’s excesses when it came to the treatment of detainees. For that, and for his presence on the Court, the nation can look to Ted Kennedy.

Kennedy’s role wasn’t just negative on Supreme Court nominees. He pushed his friend President Clinton to nominate his former aide Stephen Breyer to the Court. Kennedy wanted Breyer to get the seat that wound up going to Ruth Bader Ginsburg in 1993, but in typical Kennedy fashion, he didn’t give up, and Clinton chose Breyer to replace Harry Blackmun in 1994. Later, Kennedy remembered that some of Breyer’s colleagues on the faculty of Harvard Law School had advised him against taking a leave to work for Kennedy on the Judiciary Committee in the nineteen-seventies. “When Steve came to work for me, he was advised that this was a disaster in terms of a career. Everyone told him if he wanted experience in government he should go to the executive branch. You don’t really get your hands dirty in the executive branch,” Kennedy told me in 2005. “I wish I could walk into the Harvard Faculty Club with him today and see what they think of their advice now,” he added, laughing.

Kennedy’s absence will not end his influence. President Obama’s leading adviser on judicial selections is Gregory Craig, the White House counsel; he is a former Kennedy staffer. When the Obama team needed a “sherpa” to guide Sonia Sotomayor in her own nomination battle, the choice was Stephanie Cutter, another former Kennedy adviser. Ted Kennedy’s DNA flows through the Obama White House, the Supreme Court, and, of course, the nation itself.