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Decider on the High Court

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By David S. Broder
Sunday, July 6, 2008

The most dramatic stories in any field of competitive endeavor are those that recount events that almost never happened. It's the scoreless ballgames that end with a walk-off homer in the bottom of the ninth that linger in the psyches of winners and losers -- not the 9-3 walkovers.

So it is in politics and government. Al Gore's loss to George W. Bush gnaws at Democrats because he came so close -- a few hundred more votes in Florida or a couple of thousand in New Hampshire, and history would be different.

I've been thinking the past couple of weeks about another close call that converted a seeming loser, a quiet California lawyer, into what may arguably be the single most influential arbiter of domestic policy in the land.

I am talking about Supreme Court Justice Anthony Kennedy.

Kennedy is an accident of history. A graduate of Stanford and Harvard Law School, the son of a popular Sacramento lobbyist, he was practicing in that city when, in 1975, California Gov. Ronald Reagan suggested his name to President Jerry Ford for a vacancy on the U.S. Court of Appeals for the Ninth Circuit.

Kennedy was in his 12th year in a low-profile position there when the resignation of Justice Lewis Powell from the Supreme Court launched a titanic struggle. Reagan, by then president, wanted to move the court to the right and thought he had found the ideal nominee in Judge Robert Bork. But Senate Democrats launched an all-out war against the nomination and -- with some help from the argumentative Bork -- succeeded in denying him confirmation.

Then came a fight within the administration, with White House Chief of Staff Howard Baker, a supporter of Kennedy, being outmuscled by Attorney General Edwin Meese, who favored another circuit judge, Douglas Ginsburg. But the Ginsburg nomination died quickly when he admitted to having used marijuana.

It was only then -- after that implausible scenario -- that third-choice Kennedy was called to the White House and introduced by Reagan as his man.

It turned out to be successful beyond Reagan's wildest dreams.

In his almost 21 years on the high court, Kennedy has pursued a generally conservative course, but he has deviated often enough to avoid ideological labeling. In recent years, and especially since the retirement of another moderate conservative, Justice Sandra Day O'Connor, Kennedy has emerged as the swing vote between well-defined blocs of four confirmed liberals and four staunch conservatives. So often does his vote decide the majority in 5 to 4 decisions that this has been correctly called "the Kennedy court."

Thus, the man who was the compromise choice for the Supreme Court has turned out to be its single most influential member.

What is more remarkable is the fact that he has done so by fulfilling the expectations that Reagan and others had for him from the start. Many presidents have learned to rue their picks for the high court. John Kennedy thought he was getting a liberal in Byron "Whizzer" White. George H.W. Bush thought David Souter would be a conservative. Both were wrong.


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