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?
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