Can Justice Kennedy be Manipulated?
Scott Lemieux notes something that I also noticed in the reporting on the Kagan nomination: the idea that part of the reason that Obama nominated her was that she might be able to influence Justice Anthony Kennedy.
Scott notes, for example, TNR’s Jeffrey Rosen: “Obama has signaled that he wants a justice who can win Justice Anthony Kennedy to the liberal side of the Court in 5-4 votes. Given Kagan’s demonstrated success winning over skeptical conservatives at every stage of her career, she seems ideally suited for this role.”
However, like Scott I am unclear on the empirical evidence the Kennedy is some wishy-washy fellow waiting to be persuaded, or for that matter, whether Kagan is some sort of super-saleswomen when speaking to conservatives.
Is there any evidence whatsoever that Kennedy is susceptible to lobbying for votes, subtle or otherwise? A fairly large literature has emerged about the internal workings of the Rehnquist Court, and I’ve read a painfully high percentage of it, but I’m not aware of any documented case in which the influence of another justice has caused Kennedy to switch his views.
He then correctly notes:
some Court observers conflate moderation with indecisiveness. Just because a justice’s votes are less predictable than some of their colleagues’ doesn’t mean that they are to be subject to manipulation.
Being more moderate than, say, Justice Alito, does not mean that Kennedy sits around waiting to be led by the nose. In fact, it strikes me as odd that anyone assumes that a person occupying one of the most elite positions in the American government would be so easily manipulated. To modify a David Letterman catch-phrase: they don’t give those jobs to chimps.