Author Topic: Succeeding Justice Kennedy  (Read 562 times)

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Offline EasyAce

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Succeeding Justice Kennedy
« on: June 28, 2018, 04:24:49 PM »
His successor should know that the Constitution guarantees a free, not a "wise" society
By Yours Truly
https://www.themaven.net/theresurgent/community/succeeding-justice-kennedy-u357qQIl8Um3UxGUCumvCg/

Hyperbole is rarely as high in season as when a vacancy appears on the Supreme Court, which has happened with the retirement of Justice Anthony Kennedy. Those who love spectator sports and temper tantrums in equal measure, and it's often difficult to determine when one doesn't inflame the other, may be in for a splendid display soon enough.

Kennedy's was a tenure whose theme song was written decades before he arrived on the court after Robert Bork's dictionary-augmenting borking and Douglas Ginsburg's withdrawal from nomination rather than deal ninety percent with his occasional taste for marijuana and ten percent with his legal philosophy. Ronald Reagan's third choice to fill the vacancy left by Justice Lewis Powell's retirement believed in Ellington's Law: it don't mean a thing if it ain't got that swing.

Those who wished that adherence applied to music have been as many as have been those who wished Kennedy had been as "reliable" in constitutional construction as he was in several decisions in which his, following the retirement of Justice Sandra Day O'Connor, was considered the swing vote.

The left is aghast at the loss of a presumed kindred spirit, who upheld abortion and the sexual revolution regardless of whether he found a true constitutional foundation for any of those. Yet the same Kennedy who concurred with the majority in upholding the Boy Scouts of America's right as a private entity not to admit homosexual boys to their ranks wrote the majority opinion in Obergefell v. Hodges legalising gay marriage.

The right is let down somewhat at loss of a justice who wrote or concurred with several opinions in which the First Amendment and the Second Amendment alike were not to be traduced for any political passion or pressure point. It was Kennedy, after all, who wrote for the majority in Citizens United v. Federal Election Commission and thus torpedoed McCain-Feingold/Shays-Meehan, and trenchantly: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

That was, alas, the same Kennedy who joined Justice John P. Stevens's majority in Kelo v. City of New London, which eradicated the distinction between proper public land use and private land use on behalf of destroying long-lived homes in favour of building . . . a pharmaceutical research and development center that was abandoned, while the bulk of the taken land from the destroyed homes remains unoccupied by the hotel, stores, and condominiums that were supposed to be built once those pesky homeowners were chased away.

Kennedy's too-frequent summoning of extralegal reasoning for the majority, in concurrence, or in dissent, is what has made his tenure a controversy in the conservative camp. "Kennedy’s lack of real guiding principles had the happy consequence that he sometimes voted for the right legal outcome — and even sometimes concurred in opinions that reached the right outcome for the right reasons," says a National Review editorial. The magazine continues that he didn't owe anyone a decision they'd like, but that we "deserved from him . . . the conscientious application of the law."

Our hope for his successor on the high court should be a man or a woman who will construe the Constitution reasonably enough regardless of contemporary interest or mob passion, both of which are almost guaranteed to arise as consideration for his successor begins in an election season in which the Republican Party ship looked in danger of being kissed by an iceberg and its captain is often accused of steering the iceberg itself.

Construing the Constitution reasonably will not always pleasure any side of the ideological divide. For better or worse, there are laws on the books at all levels of public life that allow what one despises, or prohibit what one prefers; laws that allow what is unwise and even prohibit what might be wise. They don't always run afoul of the Constitution though they don't always align to Mr. Madison's document, either.

America now is a nation that would benefit immeasurably if her legislature and those of her several states would repeal myriad laws that, as James Bovard has phrased it, "turn government into a public nuisance," while passing only one further law that would say, No law passed by any legislature and/or signed by any executive shall be considered legal and binding until or unless every member of said legislature, plus every executive in question, can prove they have read it, in its entirety, at least once.

Pending that, legal wisdom begins with reminding oneself that the Constitution was written and amended to guarantee a free, not a wise society, something Kennedy's would-be successor and the man due to nominate him or her would be wise to bear in mind.
« Last Edit: June 28, 2018, 04:33:46 PM by EasyAce »

Online Cyber Liberty

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Re: Succeeding Justice Kennedy
« Reply #1 on: June 28, 2018, 09:44:19 PM »
 :hands:
I will NOT comply.
Thanks to Cripplecreek and Oceander for the medal!

Online Bigun

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Re: Succeeding Justice Kennedy
« Reply #2 on: June 28, 2018, 09:52:30 PM »
@EasyAce

Well said my friend!   Well said indeed!   :beer:

Offline EasyAce

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Re: Succeeding Justice Kennedy
« Reply #3 on: June 28, 2018, 09:58:02 PM »
@EasyAce

Well said my friend!   Well said indeed!   :beer:
@Bigun
 :beer:

Offline EasyAce

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Offline Freya

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Re: Succeeding Justice Kennedy
« Reply #5 on: July 08, 2018, 05:17:38 PM »
You write so well my froend
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Offline EasyAce

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Re: Succeeding Justice Kennedy
« Reply #6 on: July 08, 2018, 08:33:41 PM »

Online Jazzhead

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Re: Succeeding Justice Kennedy
« Reply #7 on: July 09, 2018, 08:54:18 AM »
His successor should know that the Constitution guarantees a free, not a "wise" society
Construing the Constitution reasonably will not always pleasure any side of the ideological divide.

Quite correct.  It is a mistake for the right to imitate the left and demand results-based judging.   It is significant that Justice Kennedy upheld both the free speech of corporations and the equal protection rights of gays.   That he was excoriated by the left for the former and the right for the latter doesn't mean he was an unreliable, undesirable "swing" vote, only that his fealty was to the Constitution, fairly and reasonably interpreted and construed, and not to partisan ideology.

There are four good names on President Trump's list.  Do you agree or disagree, @EasyAce ?     I will be very pleased if the nominee he selects has a career as distinguished and independent as Justice Kennedy.   
"He was born poor, died rich, and never hurt anyone along the way"

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Offline AmericanaPrime

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Re: Succeeding Justice Kennedy
« Reply #8 on: July 09, 2018, 09:40:56 AM »
Great writing!
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Offline EasyAce

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Re: Succeeding Justice Kennedy
« Reply #9 on: July 09, 2018, 10:00:48 AM »
Quite correct.  It is a mistake for the right to imitate the left and demand results-based judging.   It is significant that Justice Kennedy upheld both the free speech of corporations and the equal protection rights of gays.   That he was excoriated by the left for the former and the right for the latter doesn't mean he was an unreliable, undesirable "swing" vote, only that his fealty was to the Constitution, fairly and reasonably interpreted and construed, and not to partisan ideology.

There are four good names on President Trump's list.  Do you agree or disagree, @EasyAce ?     I will be very pleased if the nominee he selects has a career as distinguished and independent as Justice Kennedy.
@Jazzhead
I haven't had the chance to review those four people; I spent most of last week in Seattle occupied with far more important matters---namely, my son's participation in the national
Special Olympics. (His softball team won the silver medal in that sport.) And I spent most of my weekend decompressing from that trip.

Offline Oceander

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Re: Succeeding Justice Kennedy
« Reply #10 on: July 10, 2018, 09:51:15 AM »
So, next question:  will Kavanaugh be a worthy successor?

Online skeeter

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Re: Succeeding Justice Kennedy
« Reply #11 on: July 10, 2018, 09:57:40 AM »
@Jazzhead
I haven't had the chance to review those four people; I spent most of last week in Seattle occupied with far more important matters---namely, my son's participation in the national
Special Olympics. (His softball team won the silver medal in that sport.) And I spent most of my weekend decompressing from that trip.

Well done missive.

And congrats to your boy. What an accomplishment!

Offline EasyAce

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Re: Succeeding Justice Kennedy
« Reply #12 on: July 10, 2018, 10:31:13 AM »
Well done missive.

And congrats to your boy. What an accomplishment!
Thank you @skeeter ! He's still buzzing from it, and I don't blame him one bit!


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