Reagan’s third attempt at that vacancy was then-Judge Anthony Kennedy, a judge on the Ninth Circuit Court of Appeals. A Californian, Kennedy was a lifelong Republican who was amiable and well-liked. His career on the Ninth Circuit had been undistinguished, and he had consistently avoided making rulings that risked subjecting himself to criticism. Conservatives in the Reagan administration fought hard for a stronger nominee, but after the debacles of Bork and Ginsburg, conservatives had spent all their capital within the administration. Kennedy was seen as an easy way out and, indeed, he proved to be that, being confirmed in the Senate by a margin of 97–0.
Shortly thereafter, Justice Kennedy received a note from Harry Blackmun that read, “Welcome to the good old number three club.” Blackmun, like Kennedy, had been a president’s third choice for a vacancy after the first two nominations had failed. I have to say, the “good old number three club” has not served the Constitution or the American people very well. Kennedy proved exquisitely sensitive to public criticism, deeply swayed by the admiration of D.C. society, the legal academy, and the press. And for three decades, Kennedy enjoyed his role right at the center of the Court’s high-profile legal and cultural battles.
When O’Connor served alongside Kennedy, the two of them would vie for who could be the most consequential swing justice. Consistently, there was a bloc of three conservatives: Rehnquist, Scalia, and Thomas. And there was a bloc of four reliable liberals, with Kennedy and O’Connor sitting serenely in the middle. If the left could attract just one of them, they got to five and prevailed in a given case.
That’s the reason, I believe, that the Court’s docket dropped dramatically. In the 60s and 70s, with a reliable left-wing majority, the Court regularly took more than 100 cases a term. By 1981, that total rose to over 200. But, in more recent decades—with swing votes blowing in the wind—in too many cases neither liberals nor conservatives were confident where five votes would land. Avoiding cases was the more risk-averse path to take, and so the typical docket dropped to about 80 cases a year. But, if we get again a predictable, reliable majority—either liberal or conservative—I think it’s likely we’ll again see north of 100 cases each year decided at the Court.
On some issues, O’Connor was strong and Kennedy more wobbly; on others, Kennedy held firm while O’Connor blew with the wind. Between the two of them, outcomes were always uncertain. When O’Connor retired, Kennedy enjoyed over twelve years as the lone swing justice. I remember that as law clerks we joked that for criminal cases at the Court, they were decided by the “Greg test.” You see, Justice Kennedy has a son named Greg. And if the case was a case where Kennedy could possibly imagine his son might get into particular trouble under the facts of the case, then Kennedy was going to rule for the criminal defendant. But, if the case was something truly horrific, an axe murder or the like, Kennedy knew Greg could never commit such crimes and so was a much more reliable vote for the prosecution. (The test wasn’t perfect, as we saw in an earlier chapter, since at times Kennedy was perfectly capable of siding with vicious child rapists, which went far beyond the mild standards of the “Greg test.”)
After Reagan came George Herbert Walker Bush. Bush had two nominees to the Supreme Court: Clarence Thomas—who has been extraordinary, ferociously principled, and profoundly consequential—and David Souter, who during his time on the Court traveled from being mildly conservative to becoming the leader of the left wing on the Court.
Souter had served on the New Hampshire Supreme Court and was a Harvard graduate and a Rhodes Scholar. He has high intellect, but nothing in his judicial record demonstrated even a whit of conservative instincts. He had just been appointed and confirmed to the U.S. Court of Appeals for the First Circuit, where he had spent mere weeks before being considered for the Supreme Court.
This nomination was to fill the seat vacated by William Brennan, and at the end of the process, two judges were brought in to interview with President George H. W. Bush: Souter and Edith Jones, a judge from the U.S. Court of Appeals for the Fifth Circuit. Judge Jones was everything Souter was not. She had demonstrated a proven record, had upheld the Constitution, had followed the law, and she had endured brutal press vilification for daring to do so. Yet she remained fearless, principled, and unbowed.
President Bush was risk averse, and New Hampshire Senator Warren Rudman energetically vouched for Souter. Although not a conservative, Rudman told Bush” in effect, wink-wink, nudge-nudge, “even though there is zero paper trail, and there is nothing in the course of his life to prove that David Souter is conservative, trust us, he’ll be great.”
Nothing better captures the Republican disaster of Supreme Court nominations than that episode. Let me suggest something: If you have lived fifty years of your life and there is nothing whatsoever in anything you have said, written, or done to demonstrate you’re a conservative… then you’re not. And if by some bizarre miracle, you happen to be, perhaps the Supreme Court of the United States is not the best place for the world to find out.
The Bush White House wanted to avoid controversy, and confirming Edith Jones would have required a fight. Judge Jones actually stood for something—she stood for the rule of law—so nominating her would have cost political capital. So they went with Souter instead.
I remember when I was clerking, there was a tradition at the Court where each of the justices would typically have lunch one day during the term with the clerks from each of the other chambers. It was wonderful tradition, and one I thoroughly enjoyed.
The one
