The NY Times’ piece on Justice Kennedy today is another in the Times’ series of foolish (and, of course, utterly futile) attempts to kiss up to conservatives.  Most of the quotes in the article come from Robert Bork, and the notion that Kennedy is not a “true conservative” goes unquestioned throughout.  

In fact, it’s full of unquestioned assertions.  In paragraph 3, we’re blithely told that “some notable conservatives are calling for his impeachment” (they are).  But whether there are any legal grounds for such a move is not discussed (there aren’t).
Then we get three paragraphs of whining from SCOTUS reject Bork (added emphasis mine):

In an interview on Thursday, Mr. Bork, a prolific lecturer and author who functions as a kind of shadow justice, said Justice Kennedy’s opinions typified a court “no longer sticking to the Constitution” but “enacting a political agenda.”

“It’s hard to pick the right people in the sense of those who won’t change, because there aren’t that many of them,” Mr. Bork said. “And if you do identify somebody who believes in the original principles of the Constitution, then the other side can see it too and will put up a bitter fight. So you tend to get people who are wishy-washy, or who are unknown, and those people tend to drift to the left in response to elite opinion.”

Looking ahead to the fight that may unfold if the ailing chief justice, William H. Rehnquist, or another justice resigns, Mr. Bork offered a fix: “I think the solution is one hell of a battle for judges who stick to the actual Constitution.”

So it’s a conflict between those who “stick to the Constitution” and those who don’t?  Apparently — the Times’ Jason Parle never justifies or questions this framing, or presents any alternative view.  (Oh, and how exactly did Bork get appointed “shadow justice”?)

But that’s not the biggest piece of right-wing flim-flam that the Times lets pass without comment.  Note Bork’s claim above that judges “drift to the left in response to elite opinion”, then check out these quotes:

One result is rage at what Mr. Bork sees as subverted democracy. Even though Republicans keep winning elections, he said, the court “can say that the majority may not rule” in areas where permissiveness reigns, including abortion, gay rights and pornography. Calling most justices “judicial oligarchs,” Mr. Bork said they reflected “the intelligentsia’s attitude, which is to the cultural left of the American people.”

Some conservatives blame the judicial selection pool, which is largely confined to graduates of elite law schools that they describe as liberal (Justice Kennedy studied law at Harvard). Some say the Senate confirmation process weeds out strong conservatives. Many critics argue that justices drift left after reaching the court, in the hopes of pleasing “liberal elites.”

Actually, there’s a much simpler explanation: the extreme religious right does not represent the majority of Americans.  The current Supremes may not always perfectly represent majority opinion — they’re a motley crew of right-wing extremists, centrists, and moderate liberals, so their decisions veer all over the map.  But collectively, they’re a lot closer to the mainstream than the theocrats and quasi-fascists whom this NYT article dotes on.

The truth is hidden in plain sight, but Parle manages to ignore it:

For years, the court appeared to be headed toward an overturn of Roe v. Wade, the 1973 case that found a right to abortion in the 14th Amendment’s due process clause. Had 58 senators not voted against him, Mr. Bork would have cast the decisive anti-Roe vote.

Yep: if only a significant majority of Senators had not declared Bork too extreme, then he would be on the court.  And if wishes were horses, then beggars would ride.  

Thanks, Mr. Parle, for treating us to the Right’s conspiracy theories about why the judiciary doesn’t reflect their fringe viewpoints.  Too bad you didn’t have any space for the reality-based explanation: because their views are not shared by most Americans.

More commentary at The Situation Room

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