[Mb-civic] Kennedy's doubts on Roberts may prove right - Thomas Oliphant - Boston Globe

[William Swiggard]

Kennedy's doubts on Roberts may prove right

By Thomas Oliphant  |  September 29, 2005

WASHINGTON
WHERE THE Supreme Court is concerned, Senator Edward Kennedy is different.

Where most of us saw reassurance in John Roberts's confirmation hearing 
as chief justice, Kennedy saw spin. Where most of us saw the absence of 
a solid, evidentiary peg on which to hang a no vote, Kennedy saw the 
absence of a basis for a yes vote that is too important to be cast on 
traditional grounds of qualification and temperament. Where most of us 
saw a detail-dominated mind resembling a grounded conservative like 
Anthony Kennedy, Kennedy saw disturbing similarities to a revolutionary 
who masked his views 14 years ago: Clarence Thomas.

The only suspense left is whether Roberts will exceed 70 yes votes, 
because the question has split Democrats (a compliment more to Roberts's 
skill as a witness than to President Bush's vision in nominating him).

The final element of suspense involves Bush's next choice for the court, 
not likely to be announced until just after the Senate vote. If it is 
another person of self-described modest, constitutionally grounded 
temperament (the best example is Pepsico general counsel Larry Thompson, 
an African-American who behaved with professionalism as John Ashcroft's 
deputy during Bush's first term), the position of the Democrats who 
voted yes on Roberts will be strengthened. If it is anyone else from the 
right, warnings from the no voters will carry more weight.

This question is dividing conservatives. More than a few were troubled 
by Roberts's avoidance of the movement's values and principles. A second 
such choice would make their displeasure more vocal.

Among the Democrats voting against the confirmation, no on can accuse 
Kennedy of bowing to interest group pressures involving campaign 
fund-raising or reelection support.

 From being a progressive counterpart through the 1980s to conservative 
senator and occasional legislative ally Orrin Hatch of Utah, willing to 
support conservative nominees with impeccable credentials and clear 
evidence of judicious judicial temperament, Kennedy has become the 
leading Show Me Senator.

Contrary to right-wing myth, the trigger was not Ronald Reagan's choice 
of Robert Bork as chief justice. Kennedy did assault Bork with rhetoric 
he has never used before or since about a nominee, but it was based on a 
voluminous paper trail of hard-right views ultimately verified by Bork's 
own admission that he opposed a constitutional right of privacy. Kennedy 
then voted for Reagan's subsequent nominees (Antonin Scalia and Anthony 
Kennedy) on traditional grounds, as he had for Sandra Day O'Connor.

The real trigger was the intensity of the conservative movement and its 
dead aim at Roe v. Wade in a more ideological, partisan environment, 
with the court's direction hanging in the balance. This doesn't make 
Kennedy an accurate prognosticator on either David Souter or Clarence 
Thomas, indistinguishable in their noncommittal confirmation testimony 
about legal principles. But it does make him clearly consistent in his 
advocacy for Clinton nominees Ruth Bader Ginsberg and Stephen Breyer (a 
former Kennedy aide and protege), both of whom testified to their 
support of expansive concepts of liberty and opportunity while 
continuing to avoid specific questions likely to come before the court.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/09/29/kennedys_doubts_on_roberts_may_prove_right/
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