Hamilton, Madison, and Jay

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Tuesday, July 6, 2010

Justice Kennedy plans on sticking around

It's a story from the New York Daily News (HT to Captain Ed) that probably has Barry steamed. Justice Kennedy has confided to friends and family he doesn't intend to leave the Supreme Court until 2013, the year following, hopefully, Barry's defeat for a second term as president:

President Obama may get liberal Elena Kagan on the Supreme Court, but conservative swing-voter Anthony Kennedy says he's not going anywhere anytime soon.

Justice Kennedy, who turns 74 this month, has told relatives and friends he plans to stay on the high court for at least three more years - through the end of Obama's first term, sources said.

That means Kennedy will be around to provide a fifth vote for the court's conservative bloc through the 2012 presidential election. If Obama loses, Kennedy could retire and expect a Republican President to choose a conservative justice.

Kennedy, appointed by President Ronald Reagan, has been on the court 22 years. He has become a bit of a political nemesis at the White House for his increasing tendency to side with the court's four rock-ribbed conservative justices.

Without naming Kennedy, Obama was unusually critical of his majority opinion in the Citizens United case, handed down last January. That 5-4 decision struck down limits on contributions to political campaigns as an abridgement of free speech.

Obama called the ruling "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power ... in Washington to drown out the voices of everyday Americans."

He was so angry that he took the unusual step of blasting the decision in his Jan. 27 State of the Union address, with Kennedy and five other justices looking on.

What Barry did during his State of the Union speech was uncalled for, extremely unprofessional, and appeared to be rather petulant. He called out the high court on their decision like he was some sort of disapproving parent, or worse a petulant child not satisfied that he didn't get his way. We'd like to think that Justice Kennedy is holding on just to spite the president, and teach the Narcissist-in-Chief a lesson as to where his authority resides. His power isn't found in the judiciary. It's found in the executive branch which, aside from being able to appoint jurists to the federal bench, those powers end right there.

Of course Justice Kennedy isn't doing this out of spite. He's got a lot more class than Barry does. Our best guess is that Kewnnedy sees the direction Barry is wanting to take the high court, and it has shades of FDR's "court-packing" plan in it without the threat of expanding the size of the court. Justice Sotomayor, while deemed competent by the Senate's standards, is a far-left liberal jurist with tendencies towards judicial activism. Of the 380 opinions joined by her or penned by her, the high court granted a hearing to five of them. Three were overwhelmingly reversed by the Supreme Court. So, in terms of sound judicial philosophy, Justice Sotomayor seems to lack it.

Elena Kagan has been appointed to the high court by Barry to replace retiring justice John Paul Stevens. And while she win confirmation (don't kid yourselves folks; she's a shoo-in regardless of what she has said or what has been found in her past) her views regarding the Constitution were called into question by the GOP on the Senate Judiciary Committee. Past statements made, past articles written, shows that she lacks the intellectual heft that is needed for a sitting justice on the Supreme Court. Now, we warn readers that her win-loss record as solicitor general means virtually nothing. As solicitor general, it was her job to argue the government's side of an issue before the justices. The cases the solicitor general takes on are generally tough cases, and many seen as unwinnable or virtually impossible to prevail, especially if the lawyer in question lacks a firm grasp of constitutional jurisprudence.

That's two liberal justices replacing two liberal justices. It's a wash in a way, and the only drawback to both Sotomayor and Kagan winning their confirmation battles (hardly battles as the Senate has basically rolled over for their belly scratch on both jurists) is that they will be on the high court for decades to come. As of 2012 four justices will be age 75 or older -- Scalia, Kennedy, Ginsburg, and Breyer. Justice Scalia, like Justice Kennedy, has no intention of retiring anytime soon. Justice Ginsburg has continually waved off questions about her possible retirement. Justice Breyer has been mum on the subject, as well.

But given how the midterms might go in November, even if there is a retirement Barry probably won't be able to nominate another jurist in the mold of liberals Sotomayor or Kagan. He would be forced to appoint a moderate jurist which, when Kennedy retires, would be the new swing vote on the high court. Justice Kennedy assumed that mantle when Justice O'Connor retired back in 2006. While some may say that he runs a 50-50 split on swing decisions, if you take a close look at the cases where he has swung towards the conservative wing of the high court, those decisions are important ones that include First and Second Amendment issues.

This news today is important. Well, it's important for us court watchers especially with consideration to this incompetent president, and his desire to rewrite the law from the bench as opposed to the halls of Congress. Both of his choices to replace outgoing justices aren't exactly friendly to the Constitution, and both have made statements in the past akin to the president's belief that the Constitution is constructed of negative liberties; it tells us what the government -- be it federal or state -- can't do rather than what they can do on the behalf of the people. Here's a constitutional lesson for the president:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I think it's pretty cut-and-dry as to what the government was supposed to do, and where its powers lay, i.e., what the government can do for the people. Barry forgets this even though it is the very first thing cited in the US Constitution.

We hope that Justice Kennedy can hang on through the remainder of this rookie's term in office. If not, his departure would signal a significant shift on the Supreme Court, and spark a war in the Senate over who Barry would choose to replace Kennedy with. And make no mistake folks, his nominee will be as close to his own philosophy as possible.

Publius II

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