Much in the way that Bill Clinton's effete indecisiveness sent millions of liberal hearts aflutter, Lithwick is positively captivated by Kennedy's muddleheaded inability to fit a myriad of meticulously accumulated factoids into any sort of comprehensive worldview.
His speech here in Hawaii is vintage Kennedy, ranging across history (pit stops at Henry II, Newton, and Blackstone); intellectual theory (Marx, Holmes, and Solzhenitsyn); and—of course—geography. He tells of his own travels in China and Bangladesh and across Africa. He peppers his speech with language to shame a Peretz—prolix, essentiality, and dualisms. The punch line to his opening joke is: "a faint reflection of my former existential self." (This slays the lawyers.)The ostensible purpose of the piece is to recount a recent speech Kennedy gave at a meeting of the American Bar Association in Honolulu. Kennedy was urging the gathered lawyers to formulate an idea of the "rule of law" that can be sold overseas. Listening to Lithwick breathlessly describe Kennedy and his speech, it's hard not to imagine her jumping out of a cake in the justice's suite later that night:
He describes the American conception of law as a "liberating force, a covenant, a promise." And in spite of the lofty intellectualism and the big words, this speech captures my imagination and that of the assembled crowd for its two quintessential Kennedy traits. The first is the vast sprawl of his imaginative world. He travels the planet and reads widely and he attends lectures on water purification. Then he applies all that knowledge to his conception of the law. And whether you like that expansive scope, listening to him is still a tonic to the smallness and smug certainty that has characterized our political leadership in this country for the past six years. It offers a welcome break from the hermetically sealed constitutional worldview of some of his detractors. Kennedy is a legendary agonizer. But his comments here reveal the extent to which that agony is not an end in itself. His sense of justice and equality is a work in progress, informed by what he learns from people all over the planet who know more than he does. There's something reassuring in his sense that the world is a fluid place.Lithwick frequently refers to Kennedy's detractors in the piece. She says that Kennedy's ideas have "launched a thousand heart attacks over at the National Review Online," that his "inability to find certain, easy answers and his tendency to hold grandiose hopes for the law are fodder for his detractors," and that he "drives conservatives nuts with his notion that the courts must fight injustice, regardless of the messiness that ensues." In other words, she's just smart enough to know what about him sets his critics off. Yet she's not quite smart enough to understand why they're right.
Law, under our system, is supposed to be created by the people, through their elected representatives. Lawyers and judges have no place implementing their own visions for cleaner African water or fairer hiring practices. Their job is to impement the machinery created by the people. The world may be a "fluid place," but the purpose of having written laws and a written Constitution is so that those will not be "fluid." Kennedy is congenitally unable to understand this simple point, as are Lithwick and most self-identified liberals. They love hand-wringers like Kennedy because they see the role of the judge as that of an infinitely wise being who, from the bench, does whatever he thinks is best at that particular moment in time. They see the bed-wetting indecisiveness as a herculean effort to figure it all out.
Except that's not what our judicial system was designed to do. The American judiciary was not designed by the nation's architects to be a wiser legislature. It was designed to maintain the integrity of what the legislature has enacted. But because of the monumental liberal failure to enact their agenda legislatively, they've come to look at the judiciary as the court of the never-ending do-over, righting the legislative oversights of the myopic American people. That's why they are indefatigable defenders of the current judicial oligarchy, and why people like Lithwick would drink Anthony Kennedy's bathwater if they could.
Related Tags: Justice Anthony Kennedy, Supreme Court, Dahlia Lithwick, Slate, American Bar Association, judiciary