Monday, May 4, 2009

The Souter Vacancy and Justice Kennedy as the Key

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.


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This raises the question of how much personal contact among the justices is considered usual and proper. My impression has been that they only exchange draft opinions and don't engage in private conversations. Something that doesn't really require them to all be in the same building, except for oral arguments, and even those could be made electronically.

This goes to two of my proposals for reform. The first is to increase the size of the Court to 28, and have it operate like the Ninth Circuit, with cases first heard by randomly selected panels of three, appealable to randomly selected panels of nine, and from that to an en banc panel of 27, with one spare. That could enable the Court to take more than the 80 or so cases a year it has been taking, and do more justice thereby.

The second proposal is to not appoint judges to particular courts, but to a federal bench pool, from which members are drawn at random and assigned to courts from case to case. That could go a long way to depoliticize the judiciary and reduce the undue use of binding stare decisis in constitutional matters, which I consider mostly unconstitutional, as does Gary Lawson in Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave Maria L.R. 1 (2007).

Posted by: Jon Roland | May 5, 2009 6:53:11 AM

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