The Last Moderate?

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun
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NEW YORK SUN CONTRIBUTOR

‘He was the last in a line of Republican-appointed justices who moderated some of the reactionary tendencies on the court, which has now had a majority of Republican appointees for nearly half a century. All of those justices were confirmed in the days before ultraconservative activists hijacked the nomination process and ensured that only faithful right-wing ideologues would get a nod.’

* * *

That’s how the New York Times sums up Justice Anthony Kennedy as the battle begins over his successor. It neglects to mention that it’s the seat on the high bench for which President Reagan originally nominated Judge Robert Bork. Then again, too, that was before ultra-liberal Democrats hijacked the nomination process, derailing not only Judge Bork but also Judge Douglas Ginsburg. Reagan finally put up Justice Kennedy, who was confirmed 97 to zero.

Just saying. Anthony Kennedy is the “last in a line of Republican-appointed justices who moderated some of the reactionary tendencies on the court” only if one forgets, as the Times understandably did, The Honorable David Souter. He was put up by President George H.W. Bush and confirmed 90 to nine. Senators Teddy Kennedy, John Kerry, and Barbara Mikulski fetched up in the fringe that deemed the New Hampshire milquetoast too radical.

The ungrateful curmudgeons at the Times also forgot Chief Justice Roberts, who moderated the court’s “reactionary tendencies” by declaring that Obamacare is a tax. Plus, too, they left hanging the question of just when the confirmation process got hijacked by the ultra-conservatives. Was it before or after the confirmation of Justices Ruth Bader Ginsburg and Stephen Breyer? And how did Justices Sonia Sotomayor and Elena Kagan slip in there, anyhow?

Democrats, in any event, are doing their cause no favor by overlooking their own culpability in politicizing the judicial confirmation process. All the bawling about, say, the failure of the Senate to give a hearing to Judge Merrick Garland obscures the likelihood that even if he’d gained a hearing, he’d have failed to win confirmation (doubts about Judge Garland’s commitment to the Second Amendment were just one issue).

That undermines Senator Schumer’s argument that the Senate should hold off any nomination until after the 116th Senate is chosen in November. Mr. Trump, moreover, got elected president precisely on his promises to nominate a conservative to the Supreme Court; he went so far as to provide a list from which he might choose his candidate. If the states didn’t like that promise, they’d have chosen Secretary of State Clinton to be the next president.

Which brings us back to that Times editorial we quote above. What it draws from the Democrats’ current predicament is that if they are looking for justice they’ll have to look to the ballot box. We share the sentiment. It’s a version of the idea that policy shouldn’t be made by unelected judges. The sad truth for the Democrats is that we’d all be better off if most of the big social issues everyone is so worried about had been left to our legislatures in the first place.

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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