It occurred to me the other day as I was pondering a key ruling from the Supreme Court that changed so many Americans’ lives that the critical vote came from someone who wasn’t supposed to there in the first place.
Justice Anthony Kennedy fulfilled his role as the “swing vote” on the court, tilting it 5 to 4 in overturning the Defense of Marriage Act, the 1996 law that declared that marriage must be between a man and a woman. The court ruled that the law violates the equal protection clause of the Constitution’s 14th Amendment by denying same-sex couples the same rights as heterosexual couples. The ruling produced dancing in the streets, literally, in cities across the nation.
Kennedy’s role was critical. But think of this: Were it not for the U.S. Senate’s rejection of one high court nominee and another’s withdrawal from being considered for the court, Kennedy wouldn’t have been there to change history.
Justice Lewis Powell retired from the court in 1987. President Reagan nominated former U.S. Solicitor General Robert Bork to replace him. Bork, brilliant constitutional scholar that he was, harbored some views about race relations, affirmative action and women’s reproductive rights that troubled many members of the Senate, which had the power to confirm or reject his appointment. Senators chose the latter and knocked Bork out of the race in a decisive 58-42 vote to reject his nomination.
Then the president turned to Douglas Ginsburg, who looked like a shoo-in – until it was disclosed that he smoked pot while in college. Oops, Mr. Justice-designate. Can’t have that spot on the record of a Supreme Court justice. A firestorm erupted over that chapter in Ginsburg’s life. He backed out of consideration.
Only then did the president turn to Kennedy, a fellow Californian, to take his seat on the high court bench. Kennedy sailed through Senate confirmation and joined the court in 1988.
It’s not that Kennedy is an accidental Supreme Court justice. He happened to be in the right place at the right time. Furthermore, he’s proving to be far from the ideologue that some thought he’d become after being nominated by the godfather of modern political conservatism.
Vive la independent judiciary!