If Senator Kennedy had never uttered a word about a judicial nominee, he still would be among the most important U.S. Senators of the 20th century. But Kennedy did utter words about this topic, to the point that he is probably the most influential U.S. Senator in history (qua Senator) when it comes to the Supreme Court.
As Scott explains below, Kennedy played the lead role in derailing the nomination to the Supreme Court of Robert Bork. In my view, the distance between Judge Bork and Justice Anthony Kennedy, who wound up with the position, is probably the most important aspect of Ted Kennedy’s legacy.
The derailment of Judge Bork was almost surely decisive in the nomination of David Souter to fill a Supreme Court vacancy that arose during the administration of the first President Bush. At that time, the administration felt sufficiently constrained that it nominated someone whose conservatism was not demonstrable. Had Bork been confirmed, it’s almost certain that Bush would have nominated a real conservative instead of someone who was suspected to be conservative but wasn’t one.
In my view, the difference between Justice Souter and a real conservative jurist is probably the second most important aspect of Ted Kennedy’s legacy.
Thus, for better or for worse,Senator Kennedy mightily influenced both the U.S. Senate and the U.S. Supreme Court. And, as Scott has shown, he also helped radicallly transform the process by which the first body (and to some extent the president) determines who will populate the second.
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