Reagan's third choice

Sunday, April 02, 2006
In 1987, Supreme Court Justice Lewis Powell retired.

President Ronald Reagan nominated Robert Bork to fill the seat. On October 23, 1987, the Democratic controlled Senate, led by Edward Kennedy's infamous character assassination, rejected his nomination 58-42.

Reagan then nominated Douglas Ginsburg, but he withdrew after questions were raised about his use of marijuana.

Reagan's third choice was Anthony Kennedy. He was unanimously confirmed on February 18, 1988.

What hath Reagan wrought on his third choice? Here's a thumbnail sketch of Kennedy's rulings:

Kennedy wrote the majority opinion in Romer v. Evans (1996), invalidating a Colorado constitutional amendment that would have prohibited any municipality from taking any action to protect homosexuals from discrimination.

Kennedy dissented in Stenberg v. Carhart (2000), the decision upholding partial birth abortions.

Kennedy voted with the 5-4 majority in Bush v. Gore (2000).

Kennedy wrote the majority opinion in Ashcroft v. ACLU (2002), invalidating the Child Online Protection Act. COPA was Congress' second attempt to criminalize the distribution of certain information over the Internet by prohibiting child pornography, including simulated pornography and artwork.

He dissented in McConnell v. FEC (2003), the case upholding McCain-Feingold.

He dissented in Grutter v. Bollinger (2003), the decision upholding affirmative action.

Kennedy wrote the majority opinion in Lawrence v. Texas (2003), reversing Bowers v. Hardwick (1986), and invalidating a Texas statute making homosexual sodomy a crime.

Kennedy wrote the majority opinion in Roper v. Simmons (2005), making it unconstitutional to impose capital punishment for crimes committed while under the age of 18.

Kennedy voted with the majority in Gonzales v. Raich (2005), holding that Congress may ban the use of marijuana even where states approve its use for medicinal purposes.

Kennedy voted with the majority in Kelo v. City of New London (2005), holding that the government may take private property under eminent domain powers for economic development purposes.

Kennedy wrote the majority opinion in Gonzalez v. Oregon (2006), holding that the Attorney General could not enforce the Controlled Substances Act against physicians prescribing drugs for the assisted suicide of the terminally ill as permitted by an Oregon law.

But where is Kennedy in cases involving the war on terror?

Kennedy voted with the plurality in Hamdi v. Rumsfeld (2004), recognizing the power of the government to detain unlawful combatants, but ruling that detainees must have the ability to challenge their detention before an impartial judge.

Kennedy concurred in Rasul v. Bush (2004), holding that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were rightfully imprisoned.

Where will Kennedy go in Hamdan v. Rumsfeld (2006)? The Court of Appeals ruled against Hamdan. But Kennedy is likely to be the deciding vote on appeal. Professor Orin Kerr, a former Kennedy clerk, thinks Kennedy will reverse.

What would President Reagan think of his third choice?


terrye said...

Reagan might think the man is not a rubber stamp.

loner said...

What would President Reagan think of his third choice?

We don't know, but...

WASHINGTON, March 5, 2001 -- It only took one swing for former first lady Nancy Reagan to break the traditional bottle of champagne across the bow of the Navy's newest aircraft carrier, named for her husband.


Virginia Sen. John Warner told Reagan her personal strength and courage will be given to the ship to protect its crew. Warner, chairman of the Senate Armed Services Committee, called the ship "an island of democracy, sailing the seven seas bearing (President Reagan's) name."

Virginia Gov. Jim Gilmore, Secretary of State Colin Powell and Supreme Court Justice Anthony Kennedy also attended the ceremony, along with several other members of Congress and of the Reagan family.

I included the paragraph about Senator Warner because he was the 58th announced no vote on President Reagan's first choice to replace Justice Powell.

loner said...
This comment has been removed by a blog administrator.
loner said...

Right link?

Defense Department link

Worked in preview.

Patrick said...

He might of said, in view of what a nut Bork turned out to be, I'm glad the third time was the charm.

Seneca the Younger said...

Reagan was rather more libertarian than he gets credit for being (usually dancing with the cultural conservatives but not going home with them.) In particular, he's said to have been much more comfortable with gays than he usually got credit for, having been in Hollywood for years.

brylun said...

Do you think Reagan would feel comfortable with Kennedy's positions regarding the war on terror?

terrye said...


I don't know, but I do know that he gave the illegals virtual amnesty in the 80's, something Bush would be hung out to dry for suggesting.

Reagan did not respond when our Marines were killed in Lebanon either. I remember the press conference he had following that incident. He said it was difficult to know how to fight people who wanted to die. I udnerstand that he could not see in the future,if he could have things might have been different but it is hard to tell how he would have felt about the war on Terror.

Bush takes a lot of crap from conservatives but if some crazy man killed more than 200 Marines, they would be hearing from him.

Rick Ballard said...

Better than Eisenhower would have felt about Warren. But not much.