Confirmation Consternation

Justice Kennedy speaks out on judicial confirmation deadlock.

Attending a speech by a Supreme Court justice is generally just slightly less interesting than perusing the Federal Reporter. With the exception of Justice Antonin Scalia, who increasingly uses his public-speaking opportunities to erupt on some issue of church and state, most justices tend to speak in vague generalities about the workings of the court; to reassert that judges should do their speaking only in the form of judicial opinions (remind me again why they are giving speeches?); and to tell funny, charming anecdotes about justices who are dead and thus unable to defend themselves.

A speech by Justice Anthony Kennedy last week at the University of Virginia Law School almost proved this rule. He did funny British accents; he did Justice William Brennan. He dismissed last year’s Supreme Court TV shows as “vacuous, insipid, and improbable.” He offered a credible, if ultimately unpersuasive riff on how there are no “cliques or cabals” among the justices and managed to charm and amuse without saying anything political, ideological, or controversial.

Which is why his off-the-cuff comments on the judicial confirmation shenanigans bear repeating: Kennedy was remarkably candid in asserting that there is a crisis in the lower courts—that shrinking numbers of judges are being asked to decide growing caseloads and that the slowdown in confirmations is devastating their ability to do their jobs. He was equally candid in opining that “both parties have been guilty of this” and that there is definitely some “payback going on here.” And he made the best case I have heard thus far for limiting the Senate’s “advise and consent” role to something that falls short of a veto based on ideological litmus tests. Calling it a danger to judicial independence for senators to insist on nominees with specific views, Kennedy made an eloquent case for a judge’s highest authority still coming from “the ability to change his mind.” Urging that judicial independence is a creature unlike any other, Kennedy stressed that becoming a judge necessarily alters one’s fixed ideology, simply because, once you hear a case, “suddenly, there’s a real person there.”

One of the nicest things that can be said about getting a Supreme Court justice out of the black robes and blinking into the bright auditorium lights is that there’s a real person there as well. The members of the high court should be a little more willing to weigh in on the crisis facing their colleagues on the bench; more public shaming from The Brethren might just make a difference in the Senate.