Those who are confirmed may soon find that their friends seek ways to influence and manipulate them. One such judge who may need to reconsider some of his friendships is Justice Anthony M. Kennedy.
Bush v. Gore caused us to challenge our assumptions about a lot of things. Did courts create the law to serve their political ends, or to impress the editors of the New York Times? For years conservatives explained Roe v. Wade, Miranda v. Arizona, and Mapp v. Ohio as "made up law" designed to impress the cultural elite. And about twenty years ago they formed a society to combat judicial activism.
The Federalist Society proudly proclaims its motto "that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." Many of us felt that in Bush v. Gore, through judicial fiat, the Supreme Court did not say who the President "was" but who "it should be."
A recent Vanity Fair article on Bush v. Gore, partially confirmed our suspicions. Through unprecedented access to former clerks, we learned some harrowing truths about the judicial process. But Nomination Nation is not here to re-analyze the case. We're here to question whether one of its authors should remain friends with his supposed "supporters." In the VF article we learn:
[Conservatives] had never forgiven [Justice Kennedy] for his votes to uphold abortion and gay rights, and doubted both his intelligence and his commitment to the cause. Convinced he'd strayed on abortion under the pernicious influence of a liberal law clerk--a former student of the notoriously liberal Laurence Tribe of Harvard Law School, who was representing Gore in the case--they took steps to prevent any reoccurrences. Applicants for Kennedy clerkships were now screened by a panel of right-wing stalwarts.
One of these alleged stalwart was one of Justice Kennedy's former clerks - Miguel Estrada.
According to two doomed applicants:
Both [of whom] were unwilling to be identified by name for fear of reprisals. The first told me: "Since I knew Miguel, I went to him to help me get a Supreme Court clerkship. I knew he was screening candidates for Justice Kennedy. Miguel told me, 'No way. You're way too liberal.' I felt he was definitely submitting me to an ideological litmus test, and I am a moderate Democrat. When I asked him why I was being ruled out without even an interview, Miguel told me his job was to prevent liberal clerks from being hired. He told me he was screening out liberals because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay-rights decision in a case known as Romer v. Evans, which struck down a Colorado statute that discriminated against gays and lesbians."I have no position on whether it's right or wrong for justices to choose ideological clones. But I do know friendship. Friendships are based on respect and love, not disdain and manipulation.
I also interviewed a young law professor and former Justice Department attorney who told me a very similar story. "I was a clerk for an appeals court judge," the professor told me, "and my judge called Justice Kennedy recommending me for a clerkship with him. Justice Kennedy then called me and said I had made the first cut and would soon be called for an interview. I was then interviewed by Miguel Estrada and another lawyer. Estrada asked most of the questions. He asked me a lot of unfair, ideological questions, a lot about the death penalty, which I told him I thought was immoral. I felt I was being subjected to an ideological litmus test. Estrada was being obnoxious. He was acting like it was his job to weed out liberal influences on Justice Kennedy. I was never called back by anyone." (emphasis added)
The implication from the evidence above is unseemly. Does the Federalist Society and Miguel Estrada think so lowly of Justice Kennedy's talents that they must protect him from 26-year old liberals? As someone who respects Miguel Estrada and the Federalist Society (I am a member), I sure hope not.
An explanation - or an apology - would be appropriate. Thus, in the interest of a equal time, and in the interest of discovering the truth; anyone who thinks the above criticism is overly harsh or unfair, can email me. I will publish your response - anonymously, if you prefer - in full. The only caveat is that you must have personal knowledge of Justice Kennedy's hiring practices. We don't do hatchet jobs at Nomination Nation. We just want the facts, ma'am.