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Kennedy Calls on Congress to Stop Playing Politics With Judicial Confirmations

Justice Kennedy

“They had better start thinking about the dangers to judicial independence from insisting on certain political views.”

Both Republicans and Democrats are guilty of narrow-mindedly obstructing the appointment of new federal judges, Supreme Court Justice Anthony Kennedy said April 10 at the Law School. Justice Kennedy was here to receive the University’s highest honor, the Thomas Jefferson Medal in Law. “I think it’s time for the parties to come together,” he said, and agree on a confirmation procedure that stops the short-staffing of the nation’s federal circuit courts, which Kennedy characterized as overworked and underappreciated.

“They had better start thinking about the dangers to judicial independence from insisting on certain political views,” warned Kennedy. “A good judge is someone who’s willing to change his mind,” he said, particularly when an abstract issue gets presented through a real victim and a specific context.

Described by Dean John C. Jeffries, Jr. as a “pragmatic patriot” in his introduction, Kennedy charmed the audience with self-effacing humor. He recounted how, on first seeing his chambers he remarked to his wife that his hero Justice Benjamin Cardozo had once sat in the same chair. She retorted, “50 years from now it will still be called Cardozo’s chair.”

“We do not discuss cases before hearing oral argument,” he said, “because we don’t want cliques to form beforehand. This is the first time we know what each other is thinking.

“Basically, a good argument is one in which an attorney can participate in a discussion the Court is having.We’re what’s known as a ‘hot bench’ in the trade,” he said, referring to the justices’ inclination to break-in on lawyers with questions. “It’s a half hour per side per case, plus we interrupt. It’s all too short.” Yet Kennedy obviously prefers that style to the custom in Great Britain, whose more loquacious proceedings he mimicked good-naturedly.

“The cases we take are ones in which we think the guidance of the Court might be helpful because different [federal circuit] courts have disagreed about it,” he said. “We’re much better informed if we wait until there is a conflict over an issue. We know then what the issue is. Oral argument is important in our workload because that is when we make up our mind. These cases tend to be very close. That’s why we take them.”

Within 24 to 48 hours after hearing the oral arguments, the justices meet privately to deliberate over the case and vote, he said. “You have to be very forward-looking. You’re going to be bound by your decision. It’s very important to have the right rationale for a decision in order to get the largest majority behind it.” The most important word at the Supreme Court is not freedom or liberty, but “five,” he said, because it takes five votes to have a majority.

“When cases are decided there is a moment of awe when we see the system working,” Kennedy said. “When an opinion is released we realize we are draining down a capital of trust. That trust is renewed by following the traditions of the Court and by showing that the Constitution has real meaning in the modern context. The law lives in the consciousness of the people.”

Asked if it is possible for the circuit courts to all agree and nonetheless be wrong, Kennedy answered, “The presumption is that if they all agree they are right, but it is frequently the case that one circuit is out of agreement and we rule in its favor.”

On the subject of cameras in court he declared himself “a tower of Jell-O,” holding on the one hand that the public would probably be impressed to see how “technical” the work of the court is and on the other that some justices strongly oppose the idea for fear lawyers making arguments will start playing to the press. In the end he was negative: “By excluding cameras we teach that we should be judged by what we write in making decisions.” Kennedy stressed the distinctiveness of “the language of the law” and said learning that language was the purpose of a legal education. America’s legal culture is a great national treasure, he said, and the envy of the rest of the world.

The Thomas Jefferson Medal in Law, and the Thomas Jefferson Medal in Architecture, are the highest outside awards offered by the University, which grants no honorary degrees. The annual awards—Law, in its 27th year, and architecture in its 38th year —are given as part of the University’s Founder’s Day activities, centered around Jefferson’s birthday. Law and architecture were two fields that deeply interested Jefferson.

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