Monday, May 4, 2009
Last Thursday, I was prepared to blog a bit about this article - a piece from the WSJ law blog about Justice Kennedy. The article briefly mentioned Justice Kennedy's possible role in resolving the Northwest Austin voting rights case and how he - as he so often does - finds himself as the swing-vote on a divisive issue. Then, Thursday night, Justice Souter made his announcement, and it seemed like Justice Kennedy was old news.
Or maybe not.
The conventional wisdom in the mainstream media since last week's announcement is that because Souter consistenly voted with the more liberal wing of the Court, the Court's current ideological bent will not change even if Souter is replaced with left-leaning jurist. Thus, the story goes, any real "shift" on the Court will not occur until either Justice Kennedy or a member of the more conservative wing of the Court should retire. But I think the media are overlooking an important X-factor here - Justice Kennedy.
Supreme Court justices peruade each other in a number of ways. Some persuade through the force of their personality, others through their personal stories. What persuades Justice Kennedy the most? Law? Life Expericences? A combination of the two? If President Obama wants to create a swift change on the Court, he would do well to have his staff investigate this question and try to find a nominee who can fit that description. This person - the "perfect persuader" - would be someone that not only shares Obama's legal views and philosophy, but can also convice Justice Kennedy of the correctness of these positions.
If President Obama chooses wisely, this "perfect persuader" could give him the Court he seeks immediately. Overnight, the Court could move from a slightly right-leaning to one leaning slightly to the left. Thus, being able to get Justice Kennedy to the left on a more regular basis would have a real and immediate impact on the Court.
Thepotential fly-in-the-ointment here is that Justice Kennedy may relish being the "man in the middle." Perhaps he votes the way he does to prevent the Court from going too far in any particular direction. Moreover, the ploy may work better in some cases than in others. At any rate, it is certainly worth a try to pick a nominee for that express purpose. Depending on the person chosen, the plan could have more than even odds of succeeding.
We won't know how the Kennedy angle will play out until the first arguments in October at the earliest. But until then - and even after - it will be intriguing to speculate if adding a new person to the mix will change the Court in any significant manner.