Justice Kennedy spoke to an enthusiastic audience of attorneys in Orlando. The whole article can be found here.
“When the judiciary is under attack, the bar disengaged, the public indifferent and critics scornful, then this idea of judicial independence might be under a real threat,” Kennedy said.
Perhaps Justice Kennedy should have considered the sanctity of judicial independence before he prostituted the High Court to install George W. Bush as President. But, Kennedy was fully complicit in the politicization of the court in 2000, making the comments of audience member, Jesse Diner, tragically ironic.
“He captured exactly what it means,” he said. “An independent judiciary should be free of outside influence and free of reprisals.”
How free was said judiciary in 2000? See below the fold.
All question that Bush v. Gore was a political decision, on the part of the Supremes should have been laid to rest with the revelations in Vanity Fair, which raised a furor by using former court clerks as sources.
It was actually Kennedy who inserted the court into the Florida process by rounding up votes from other justices for a grant of certiorari.
Vanity Fair reveals that the decision to put George Bush in the White House was made as soon as Justice kennedy agreed to accept Bush’s petition for certiorari. Each justice is responsible for considering emergency motions in different parts of the country. Florida was Justice Kennedy’s turf. It only required three more votes to support his grant of certiorari. The four justices who comprise the conservative bloc signed on: Rehnquist, Scalia, Thomas and O’Connor. At that moment the 5-4 majority vote favoring George Bush was carved out.
Justices Kennedy and O’Connor were never the swing voters that Gore’s lawyers thought they were.
[A]n O’Connor clerk said that O’Connor was determined to overturn the Florida decision and was merely looking for the grounds. … In this instance, one clerk recalls, “she thought the Florida court was trying to steal the election and that they had to stop it.”
The complete Vanity Fair story can be found here. The picture it paints of Kennedy is of a rather grandiose jurist, manipulated by conservative interns.
Conservatives, however, were not always happy with Kennedy, either. They had never forgiven him for his votes to uphold abortion and gay rights, and doubted both his intelligence and his commitment to the cause. Convinced he’d strayed on abortion under the pernicious influence of a liberal law clerk–a former student of the notoriously liberal Laurence Tribe of Harvard Law School, who was representing Gore in this case–they took steps to prevent any reoccurrences. Applicants for Kennedy clerkships were now screened by a panel of right-wing stalwarts. “The premise is that he can’t think by himself, and that he can be manipulated by someone in his second year of law school,” one liberal clerk explains. In 2000, as in most years, that system surrounded Kennedy with true believers, all belonging to the Federalist Society, the farm team of the legal right. “He had four very conservative, Federalist Society white guys, and if you look at the portraits of law clerks on his wall, that’s true 9 times out of 10,” another liberal law clerk recalls. “They were by far the least diverse group of clerks.”
I highly recommend the article, as it provides valuable background material on one of the worst subversions of justice in American history.
The Court’s opinions were issued at roughly 10 o’clock that night. The only one that mattered, the short majority opinion, was unsigned, but it bore Kennedy’s distinctive stamp. There was the usual ringing rhetoric, like the “equal dignity owed to each voter,” even though, as a practical matter, the ruling meant that the ballots of 60,000 of them would not even be examined. The varying standards of the recount, Kennedy wrote, did not satisfy even the rudimentary requirements of equal protection. Although six more days would pass before the electors met in their states, he insisted there was too little time for the Florida courts to fix things.
There were two more extraordinary passages: first, that the ruling applied to Bush and Bush alone, lest anyone think the Court was expanding the reach of the equal-protection clause; and, second, that the Court had taken the case only very reluctantly and out of necessity. “That infuriated us,” one liberal clerk recalls. “It was typical Kennedy bullshit, aggrandizing the power of the Court while ostensibly wringing his hands about it.”
Well, that is at least consistent with his recent comments.