Kennedy: Kagan Will Change High Court's 'Dynamic'

Friday, 14 May 2010 09:22 PM

By Jim Meyers

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With Supreme Court nominee Elena Kagan likely to be confirmed in the Senate, Associate Justice Anthony Kennedy says the addition of a new justice will surely change the “dynamic” of the high court.

Speaking at a gathering in West Palm Beach, Fla., on Friday, Kennedy also acknowledged that empathy cannot be totally excluded from the judiciary, sharply criticized the American penal system, defended the court’s recent decision to relax restrictions on political donations by corporations, and said people around the world who lack the protection of the law “put a bomb in their knapsack.”

Kennedy spoke before the Forum Club of the Palm Beaches — a nonpartisan political and public affairs organization — and the Palm Beach Country Bar Association. He also fielded questions from the gathering afterward.

One questioner asked about the Senate confirmation process that a “potential colleague” is about to go through.

Story continues below video.


Kennedy — who was nominated for the Supreme Court by President Reagan in 1988 — responded:

“The Senate is a political body and they have to act in a political way. The Framers knew that.

“It’s not for me to tell the Senate how to structure that process. I do think it has the obligation, the necessity, of preserving the neutrality and the independence and the integrity of our court.

“Just to ask questions to try to figure out how the judge would rule on a specific question seems to me a rather short-term exercise. What you should ask is whether the judge has the temperament, the commitment, the character, the learning, to assume those responsibilities.”

Asked if he had any advice for Kagan as she goes through this process, Kennedy drew laughter when he answered simply: “No.” He did go on to say the court has a tradition that justices not contact a nominee until confirmed.

Another questioner asked how a court will change when a justice is replaced.

“It’s group dynamics,” he said, comparing the court to a jury. “You replace one person on a jury, it’s a different group.” And when a new person comes in, “it’s a new court. The dynamic will change.”

Kennedy rejected the notion that justices should be defined by their conservative or liberal views.

“Your oath requires you to search for a neutral, traditional principle within the confines and the framework and the structure of the law,” he said.

“Of course your background affects who you are. But the duty of judging is to see this within yourself and to rise above it, to find some neutral principle. That process is honest and is true and it works, and the public and the Senate of the United States ought to allow it to work that way.”

During his State of Union address, President Barack Obama took issue with the Supreme Court’s decision, authored by Kennedy, in the Citizens United case, which eased restrictions on corporate and union spending on political campaigns. During the president’s comments, Justice Samuel Alito was seen to mouth the words “not true.” Kennedy was asked what was going through his mind at that point.

“Well, I’m familiar with the case,” he said, again drawing laughter.

He did not directly address the question, instead saying:

“Separation of powers and checks and balances are often used as interchangeable terms. But they’re really different. Separation of powers means that the Constitution gives each branch of the government certain prerogatives so that branch can be independent in its assertion of its power.

“Checks and balances means we have to work together,” or else “the system doesn’t work.

“This is an interaction that the branches have with each other. At the State of the Union we’re the guests of Congress.” Then he paused and said, again to laughter: “Look, I‘ve got a lifetime job. The president doesn’t.”

Discussing the Citizens United case, Kennedy said the provision that was overturned “could ban a book that came out 30 days before the election. We thought there were serious First Amendment problems with that.”

He acknowledged the danger of money mixing with politics, but added that “society over the course of time will look at that decision and come to a judgment as to its wisdom and its correctness.”

He referred to an earlier court decision regarding whether or not it’s protected speech to burn the American flag. By a 5-4 vote, the court said the First Amendment protects that action.

Kennedy said he explained at the time that “the Constitution sometimes requires us to make decisions we don’t like. We make them in the sense that they’re right, right in the sense that the law and the Constitution compel the result.”

Some Americans were infuriated by the decision and Senators denounced it, Kennedy recalled. But he said that over the course of the few next months, opinions changed when people realized that the court was protecting the rights of all Americans.

Kennedy was asked if empathy can be “perfectly excised” from the judiciary.

“No. If lack of empathy means that you close your eyes to the consequences of the law’s decree, that’s just silly.”

Kennedy noted that the courts supervise the criminal system, and said that due to mandates largely from the legislative branch, jail sentences in America are eight times longer than in England and Western Europe for equivalent crimes. His home state of California, he said, has nearly 200,000 people in prison, at a cost of $32,500 a year for each inmate.

“Capital defendants in a single windowless, 12-by-8-foot cell for 20 years waiting for their sentence — you’re not supposed to know this when you’re a judge?

“So of course empathy has a role.”

When a questioner referred to comments Kennedy made in 2004 about America’s exploding prison population, the justice responded:

“If you were asked to design a penal system that would win the prize for the worst system, the one you’ve got would at least be runner-up.

“If cost is a way to activate human compassion, I’ll take it. We are squandering our resources and spending them in the wrong way.”

Kennedy said he approves of sentencing guidelines but is critical of mandatory minimums that are often imposed in drug cases.

Asked how he would define an activist court, Kennedy quipped: “An activist court is a court that makes a decision that you don’t like.”

In his speech, Kennedy said:
  • “We take cases because they are controversial. We know that in many instances the court will not be unanimous. We know that in many instances the American public will not initially be pleased with the result. But that’s the nature of our function.”
  • The Supreme Court’s job is to replenish “trust the public has in our institutions by adhering to our judicial oath, by adhering to the principles of neutrality and independence and fairness and quiet discussion, decency, courtesy, scholarship. That’s the way our court works.”
  • It’s important for young people and Americans in general to know the Constitution. “You cannot preserve what you do not revere. You cannot protect what you do not comprehend. You cannot defend what you do not know.”
  • Observing that “probably two-thirds of people” around the world live outside the rule of law, Kennedy said: “Americans have a different view of the law than many people around the world and this we must teach. Our best security in the last analysis is in the world of ideas. The law empowers the person. And if that person doesn’t have the law empowering him, they put a bomb in their knapsack or a machinegun in their car.”

Kennedy told that gathering that citizens in Sri Lanka can spend 365 days in prison for want of a $1 fine, and in some African nations a woman who is raped must pay $5 to file a police report.

“This isn’t the rule of law,” he declared. “It’s the absence of the rule of law. It’s the antithesis of justice.

“We must defend our own system so the rest of the world agrees with us. The work of freedom is never done.”

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