Justice Kennedy Shares Foreign Policy Views

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By Charles Lane
Monday, November 7, 2005

Members of the Supreme Court generally shy away from public opining about the state of U.S. foreign relations. But Justice Anthony M. Kennedy offered a few concerns on the subject in a little-noticed talk he gave to a gathering of international dignitaries and graduate students in New York not long ago.

"My major concern is that what I thought was the golden age of peace seems farther from our reach than I would have thought 10 years ago," he said June 3 at the annual International Summit of the Academy of Achievement, a U.S. nonprofit organization that honors big names in government, science, philanthropy and the arts.

He went on: "My major concerns are that there is not an understanding and a commitment to the idea that the American constitutional system and the American idea of freedom have certain universal components that we have the duty, number one, to understand ourselves, and number two, to explain to the rest of the world. Not at the point of a bayonet. That's sometimes necessary, but not at the point of a bayonet, but because we have a bond with all of humankind. I don't think that we are looking far enough ahead in this respect, and I am concerned that nationalism or self-interest will obscure the greatness of American traditions."

If that was a roundabout critique of the Bush administration's conduct of the war in Iraq, Kennedy isn't saying so. A court spokeswoman said he was unavailable for comment on the question.

But clearly Kennedy does share President Bush's view that spreading freedom to the Islamic world is vital to U.S. security, even if he doubts the manner in which that goal is being pursued.

Noting that the United States has a "first duty to build bridges of understanding with the world of Islam," Kennedy said, "We're in a struggle in which our security will depend on ideas. The idea of freedom, if accepted by most of the rest of the world, is our best security. And we must build bridges of understanding to explain the principles of freedom."

The problem, he said, is that "I'm not sure we're doing a very good job at the moment."

On the court, Kennedy has developed an interest in things international. He is a regular instructor at summer seminars in Austria. He has spoken in France with new Iraqi judges, and conferred with Rwandan judges by teleconference. When Chief Justice William H. Rehnquist died Sept. 3, Kennedy had to rush back from one of his frequent visits to China.

Most controversially, perhaps, he has cited the views of foreign courts in decisions striking down a Texas law banning private consensual homosexual conduct and striking down the death penalty for offenders younger than 18.

Kennedy's comments to the Academy of Achievement had been hidden in plain sight on the Internet for some months, until his former law clerk, Orin Kerr, called attention to them on his blog last week.

Kerr, now a law professor at the George Washington University, said he found his former boss's remarks intriguing not only because of the foreign policy ruminations, but also because Kennedy spoke of his personal approach to deciding cases at the court.

"Anytime you can get a Supreme Court justice speaking about how they see themselves doing the job, you are going to learn something," Kerr said.

Kennedy, a center-right appointee of President Ronald Reagan, has pleased liberals by supporting gay rights and pleased conservatives by supporting states' rights. Not surprisingly, both sides have charged him at times with a lack of decisiveness or consistency.

At one point in the talk, Kennedy seemed to defend his approach.

"If you have complete confidence that you're right, you better do a reality check," he said. "Now there's a difference between weak and indecisive and not knowing at once what you're going to do. You have the duty of introspection and reflection and study, and of judging, of adjudicating, based on what you hear. I think you have a duty to keep an open mind. That's not indecisiveness. That's just a commitment to the tradition of the law."


© 2005 The Washington Post Company

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