Anthony Kennedy must not be Chief Justice

The end of a Supreme Court term means speculation about retirements and new appointments. One rumor in particular must be quashed.

No justice announced retirement this year. The court's 2001-02 term, which closed on June 27, was the eighth with the same lineup, the longest stretch without a vacancy in more than 175 years. Only four American Presidents have not made even a single appointment, and two of them did not serve a full term. The odds are a vacancy will happen soon.

Most court watchers say the next retirement will likely come from among Chief Justice William Rehnquist and Justices John Paul Stevens and Sandra Day O'Connor. President Richard Nixon appointed the 78-year-old Rehnquist in 1972. President Gerald Ford appointed the 82-- year-old Stevens in 1975. And President Ronald Reagan appointed the 72-year-old O'Connor in 1981.

Efforts to influence Supreme Court nominations come from many quarters. The far left started early, sending a shot across President Bush's bow last year by roughing up Atty. Gen. John Ashcroft during his confirmation. They continue assaulting appeals court nominees such as Charles Pickering, defeated in the Judiciary Committee, and D. Brooks Smith, narrowly approved by the Judiciary Committee and awaiting a full Senate vote. At the left's direction, Senate Democrats won't even consider other nominees, such as Miguel Estrada, who have Supreme Court potential.

But campaigning from within the Supreme Court is rare. Speculation is rampant that Justice Anthony Kennedy, a 1988 Reagan appointee, wants to be chief justice if Rehnquist steps down. Reporting on Kennedy's very public participation in projects such as the "Dialogue on Freedom" with First Lady Laura Bush, the Chicago Tribune in February quoted one court watcher who said, "I'm sure he wants to be chief justice."

As recently as June 17, a front-page Washington Post article quoted another court watcher as saying that "everyone thinks, believes, speculates, that Kennedy wants to be chief justice."

Elevating Kennedy would be a huge mistake. Some say he is a "centrist" because he is in the court majority more than any other justice. The court, however, is closely divided between activist justices who believe they can make law and restrained justices who believe they may only interpret the law. Being in the majority all the time simply means Justice Kennedy has dual jurisprudential personality syndrome.

President Bush has taken sides in this debate. Sending his first nominees to the Senate on May 9,2001, he said: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench.... My.nominees will know the difference." The question is whether Kennedy is truly that kind of judge.

Most Supreme Court decisions don't help answer this question and most of the rest are unanimous. But in the cases that count, the ones that involve important constitutional issues and where the two different positions-activist and restrained-are clear, Kennedy has proven he is not the kind of judge President Bush says he wants to appoint.

The first batch of cases are those in which Kennedy authored the opinion for the court. On May 16, 2002, Kennedy wrote the opinion in Ashcroft v. Free Speech Coalition striking down a federal law banning virtual child pornography. Congress intended the statute to cover only a narrow category of material and, if he had respected Congress, Kennedy would have upheld it. Instead, Kennedy effectively re-wrote the statute to give it a broad focus so that he could strike it down. All the activists joined him.

Last year Kennedy wrote the opinion in Legal Services Corporation v. Velazquez striking down Congress's restriction on taxpayer-funded lawsuits. All the activists joined him. In dissent, Justice Antonin Scalia wrote that Kennedy had invented "a novel and unsupportable interpretation" of the 1st Amendment and that the court's decision had "no foundation in our jurisprudence."

In 1995, Kennedy wrote one of the most activist decisions of this century. In Romer v. Evans, the court struck down Amendment 2, a provision of the Colorado Constitution prohibiting special legal rights for homosexuals. The people of Colorado overwhelmingly passed it, but Kennedy knew better. He rejected out of hand the many reasons Colorado offered to justify Amendment 2. The measure was, he said, "inexplicable by anything but animus toward" homosexuals. That is, Kennedy said the people Colorado not only were bigots, but liars in trying to justify their bigotry. Scalia, joined by Rehnquist and Justice Clarence Thomas, dissented.

In 1992, Justice Kennedy wrote the opinion in Lee v. Weisman striking down clergy-led voluntary graduation invocations. He said students who simply stand in respectful silence were actually participating in a religious ceremony. Scalia, joined by Rehnquist and Thomas, dissented.

And in 1992, Justice Kennedy joined O'Connor and Justice David Souter in crafting the decision reaffirming a "right" to abortion and creating new regulations for evaluating abortion restrictions. As even honest abortion advocates admit, this is a political or social issue, but ti-.e Constitution has nothing to do with it. These activists wrote that the Constitution protects "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." They actually wrote that. The only Constitution containing such a right is the one Kennedy made up.