Commentary: Reagan’s gift of Kennedy
By Michael Leppert
Ronald Reagan was posthumously vital to a landmark week in America. It has been commonplace for some time for some Republicans to refer to themselves as “Reagan Republicans.” Supreme Court Justice Anthony Kennedy has now established the standard for that descriptive.
It’s weeks like these that should inspire Americans to study exactly how the U.S. Supreme Court has been assembled. The politics of it are fascinating and have taken nearly 30 years and five presidents to implement. I will admit that even as someone who has worked in politics for 20 years, only in recent time have I been able to even name the nine members of the high court. After the rulings on the Affordable Care Act and marriage equality this week, I am pretty sure that shortcoming of mine has ended forever.
The court is currently made up of five members appointed by Republican presidents and four by Democrats. That would imply that conservative members of the public should be happy with this court. Obviously that is not the case. In Thursday’s ruling on the Affordable Care Act, Chief Justice John Roberts, a George W. Bush appointee, and Justice Anthony Kennedy, a Ronald Reagan appointee, joined the four Democrat appointees in the landmark decision. The next day, Kennedy joined the Democrats again on the marriage equality decision, writing the majority opinion which will be quoted and cited repeatedly for the foreseeable future. It really is that good.
In the partisan climate of today, it seems awkward to some, and maddening to others, to have a Republican appointee to the court side with the Democratic appointees so often and so prominently. But the nation’s path through the nomination process in 1987 and 1988 to replace retiring Justice Lewis Powell is a vital episode in history that calls for a review this week. Justice Kennedy was President Reagan’s third nomination to fill that vacancy, and while he was confirmed by the Senate 97-0, it marked the end of a dramatic stretch of D.C. politics that is worthy of a book or two. Actually, I think there are more than a couple of books on it.
So who remembers Robert Bork? Oddly, I do. I also vividly remember the process and fight that Judge Bork went through in his attempt at being confirmed following his nomination to the high court. It was three weeks of high drama highlighted by a controversial floor speech by the late Sen. Ted Kennedy blasting Bork’s qualifications. But in today’s context, it is ironic that the chairman of the Senate Judiciary Committee, which leads the confirmation process, was none other than our eventual and current vice president, Joe Biden.
Bork came from the Nixon administration and played a vital role in the infamous Saturday Night Massacre, the illegal firing of Watergate Special Prosecutor Archibald Cox. When Nixon ordered his attorney general, Elliot Richardson, to fire him, he resigned instead. The order then fell to Deputy AG William Ruckelshaus, an Indiana native, who also refused to carry out the order and resigned as well. Next up was Bork, who did fire Cox, leading to Nixon’s private promise to nominate him to the court. Nixon resigned before he could deliver on that promise. But 14 years later, Reagan nominated him, even though politically he shouldn’t have. To say Bork had baggage would be an understatement, and the Senate defeated the nomination as Democrats had promised, on a 58-42 vote.
Reagan followed this up with his nomination of Douglas Ginsburg (no relation to Justice Ruth Bader Ginsburg), but his nomination was withdrawn nine days later after controversy stirred over his public admission to marijuana use.
After all of that came the nomination of Anthony Kennedy. There was some concern in Washington that the Senate was not going to confirm any nomination made by Reagan in his last year in office. But Kennedy won the support of conservatives and liberals as being fair and balanced. He has gained a reputation of looking at international law for guidance on certain issues such as human rights and has been given the label of a “swing vote” on the panel, a nickname he hates. Until this week, my favorite quote of his came from a 2010 Associated Press interview when he said that “an activist court is a court that makes a decision you don’t like.” How fitting that quote seems this week.
The point is that the process of becoming nominated and confirmed as a Supreme Court justice is rigorous and appropriate. Politicos of all types, who had hoped for different outcomes this week, have been suggesting that this “activist” court, Kennedy in particular, should be held to some different process. There are presidential candidates talking about impeachment and disbanding the court. Now all of those suggestions are just silly. Our process is not broken and the results this week were not wrong.
President Reagan needed to fill the vacancy before he left office and in this case, the third time was the charm. In reading and relearning some of the positions Reagan held all of those years ago, I expect that our former president would be far from disappointed in his last appointee’s recent landmark opinions. Of course, that suggestion might agitate conservatives a little as well. In any case, thank you Mr. President, you picked a good one this time.
The ACA decision was a big one. But I can’t remember any court decision in my life that has caused a celebration like the marriage equality one. It was a decision that took a long, long time to be made starting with the assembly of a court that seems to have a clearer vision of America today than our current Congress does.
During our celebrations in the days that follow, please don’t forget how this group of nine people were assembled. In the case of Reagan and Kennedy, we should be particularly appreciative. Only a nominee that was historically special could have answered the call to serve that was made to him in late 1987.
Sometimes in politics the most important things that ever happen are not obvious. The date of the marriage equality decision will appear on high school history exams. Justice Kennedy’s path to the court should be a part of the same lesson.
(Michael Leppert is a public and governmental affairs consultant in Indianapolis and writes his thoughts about politics, government and anything else that strikes him at IndyContrariana.com.)