The NYT has a lengthy piece this morning that starts off with a brief profile of Justice Kennedy and ends with a more complete one. In between it moves into the politics of the fight that may start as soon as today: In Battle to Pick Next Justice, Right Says, Avoid a Kennedy.

I find the intro a bit telling in terms of the author’s POV, as it starts out describing how Kennedy was at first thought to be “Bork without the beard” but later was seen as not as conservative vis-à-vis the Constitution as some thought he was, and hence to many conservative crying “No more Tony Kennedys”!

Yet, in the next paragraph we find the piece describing Kennedy as a “genial apostle of tolerance and consensus” which is thrown up as a stark juxtaposition to all these criticisms, as if to underscore how the mean ol’ conservative just don’t like nice, tolerant people. Please–after all, who could criticize a “genial apostle of tolerance” except a bunch of right-wing kooks, right? I have been critical of the “impeach Kennedy” crowd, which I think is rank nonsense, but there are reasons, if one believes in strict construction of the Constitution, to have problems with some of Mr. Kennedy’s interpretations.

Indeed, the underlying thesis of the piece seems to be that there is a large branch of conservatives out there who are simply very angry. I will concur that there are those seem overtaken by their emotions, to be sure. Many have, in my mind, damaged their credibility by over the top rhetoric. For example:

“The confrontation is coming with a vengeance,” wrote Dr. James C. Dobson, in a Focus on the Family Action letter to about two million supporters. As he often does, Dr. Dobson labeled Justice Kennedy “the most dangerous man in America.”

Such statements have diminished my ability to take Dobson seriously, I must confess. Further, Delay’s threats about “good behavior” are ludicrious and I have always had a hard time with Schlafly, to put it mildly.

However, there are legitimate philosophical arguments to be made concerning many of Kennedy’s positions, and it all does call to the fore questions of what a Justice should or should not be utilizing in his or her decision making. Those positions, and the commensurate disappointment that many have had with Kennedy, could be better presented than simply a case of the rantings of the Angry Class. As such, I think that the piece reveals something about the bias of the author.

Regardless, the fight that looms will be a big one, and I fear one that will not be about interesting, important and abstract issues of judicial philosophy, but rather will be one about perceptions of what kind of outcomes on specific policies that a given nominee will supposedly foster. Indeed, I fear that even those on the right side of the equation who are supposedly in favor of judicial restraint, are really seeking their own brand of judicial activism, while being in active denial in their own minds about that fact.

Further, while I wholly agree that the Court has often steps beyond what I think are reasonable bounds to subvert the power of legislature (abortion being perhaps the key example), I think that many on the right-ish side of things need to remember that the Court doesn’t function to simply uphold the will of the majority. Indeed, the Court often will (and must) find for the rights of minorities–such is the spirit of limited government and the Bill of Rights. So if one is upset with the Supreme Court because it does not always do what the majority of voters may want it to do, one is upset at the Court for doing what the Court is supposed to do in many cases.