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Was Ted Kennedy right about Scotus?

So was Ted Kennedy right after all?

A year ago, the liberal lion in winter wrote an opinion piece for the Washington Post in which he accused Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. of having misled the Senate (but not, apparently, Kennedy himself). Both of Bush’s nominees had espoused a “neutral, modest judicial philosophy,” Kennedy complained, but once on the court “they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law.”

Kennedy’s rant raised eyebrows partly because it seemed like a rush to judgment — Roberts had served only a term on the court and Alito half a term — and because the indictment was insubstantial. Indeed, the 2005-2006 term offered some confirmation of Roberts’ promise to seek consensus, including a unanimous vote in an abortion case.

Now that the 2006-2007 term has ended, with conservative “wins” on abortion and race-conscious admissions policies in public schools, Kennedy can claim to be clairvoyant. At postmortems on the second term of the Roberts court — including one in which I participated — the debate is about not whether it was good year for conservatives, but whether they should be merely pleased or dancing in the streets.

I take the former view. Though it may be small comfort to liberals, Roberts and Alito are not clones of Justices Clarence Thomas and Antonin Scalia. (Note that neither of the newcomers signed a concurring opinion in the partial-birth abortion case which Thomas and Scalia trashed Roe vs. Wade).

A more interesting question than whether Kennedy’s doomsaying was right is whether the 2006-2007 term vindicates the prescription he offered for future Supreme Court confirmations: that “it is essential that we learn enough of their legal views to be certain that they will make good on the simple promise etched in marble outside the Supreme Court: ‘Equal Justice Under Law.’ ”

Discount the last part of that formula: Like everyone else in the debate about Supreme Court appointments, Kennedy has his own definition of the “simple promise” of equal justice. What about his first point: that the Senate be apprised of nominees’ legal views? How should sadder-but-wiser Democrats who voted for Roberts convert their buyer’s remorse into a plan for the next nomination?

The problem is that Kennedy’s premise — that senators were in the dark about Roberts’ and Alito’s legal philosophies and political preferences — is nuts. Unlike baseball umpires (Roberts’ flawed analogy for the role of a judge), Supreme Court justices are appointed by presidents who try to leverage those appointments to their own advantage and to that of their party. It’s no accident that, when reporters were asked by their editors to speculate about Supreme Court appointees under a John Kerry or Bush administration, the lists didn’t overlap. (Roberts and Alito were on my Bush list.)

“Duh!” you might say. But precisely because liberals like Ted Kennedy believe in a robust, rights-enhancing judiciary — one that is the last, best hope of minorities, women, workers, criminal defendants and others who might lose out in the democratic process — they have to deny even more strenuously that they view judges simply as legislators in robes. But once you insist that judges, including Supreme Court justices, are different from politicians, it becomes harder to frame an argument against a nominee just because you don’t like the way you think he’s going to vote.

This leaves those who would oppose nominees with four options: harp on credentials (or the lack of them), a gambit that was unhelpful in attacking Roberts and Alito, who were both rated “well qualified” by the American Bar Assn.; concoct an argument that the nominee is unethical or bigoted (a tactic that flopped against Alito); argue that every appointment should be viewed in terms of how it affects the “balance” on the court (a criterion that would have required President Clinton to replace Justice Byron White with someone more conservative than Ruth Bader Ginsburg); or, last and most neutral-sounding, argue that a nominee is not just too conservative or liberal for your particular tastes but “outside the mainstream.”

One person’s mainstream is another’s tributary, but it’s fair to say that opinions by Scalia and Thomas do run off in unusual directions. That’s why critics incessantly emphasized that Bush had suggested that he would appoint justices “in the mold of” the dastardly duo. The problem is: he didn’t. So what’s the solution if, like Kennedy, you find even the more pallid conservatism of Roberts and Alito unappealing?

You can vote no, as Kennedy did on both nominations, but if the other party has the majority or even close to it you’ll be outvoted. Or you can embrace the Lindsey Graham rubric. During Roberts’ confirmation, Graham, a Republican senator from South Carolina, reminded Democrats on the Judiciary Committee that “elections matter.”

Elections matter when Bill Clinton beats George H.W. Bush and proceeds to name Ruth Bader Ginsburg and Stephen G. Breyer to the high court, and they matter when Bush’s son beats Kerry and moves to install Roberts and Alito. Graham argued that over time both parties are well served by a policy of deferring to a president’s judgment so long as a nominee is qualified. That makes sense even if the Graham rubric is tweaked to allow for opposing a nominee who truly is outside the mainstream.

Michael McGough is The Times’ senior editorial writer. Send us your thoughts at opinionla@latimes.com.


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