Kennedy was sometimes willing to sacrifice procedural fairness

[formerlurker]

BEST OF THE WEB TODAY
AUGUST 26, 2009
The Cost of Doing 'Justice'
Ted Kennedy was sometimes willing to sacrifice procedural fairness--and even common decency.
By JAMES TARANTO
Last week it emerged that Ted Kennedy had undertaken a bit of end-of-life planning. As The Wall Street Journal noted in an editorial, Massachusetts' terminally ill senior senator had written to state lawmakers in Boston urging them to change state law so that upon Kennedy's death Gov. Deval Patrick, a fellow Democrat, would be able to appoint a successor immediately. Kennedy died last night of cancer, and unless the Massachusetts Legislature changes the law, his seat will remain vacant until a special election 145 to 160 days hence.

Kennedy's effort to ensure a quick succession are emblematic of why liberals loved him and conservatives found him maddening. As the Journal editorial pointed out, the special-election law is only five years old and was "orchestrated" by none other than Ted Kennedy:

John Kerry, the other Senator from the state, was running for President in 2004, and Mr. Kennedy wanted the law changed so the Republican Governor at the time, Mitt Romney, could not name Mr. Kerry's replacement. "Prodded by a personal appeal from Senator Edward M. Kennedy," reported the Boston Globe in 2004, "Democratic legislative leaders have agreed to take up a stalled bill creating a special election process to replace U.S. Senator John F. Kerry if he wins the presidency." Now that the state has a Democratic Governor, Mr. Kennedy wants to revert to gubernatorial appointments.
Kennedy's shamelessness in urging repeal of a law he himself pushed for was either appalling or admirable, depending on your point of view. To conservatives, it was a pure partisan power play: Kennedy favored whatever gave Democrats a tactical advantage, procedural fairness be damned. To liberals, however, it was an act of idealism: Kennedy had spent a career trying to advance "universal health care"--which to him and them is a matter of basic justice--and the Bay State vacancy could make the difference between ObamaCare's passing or failing. To our mind, the conservatives have the better of the argument, though we must concede that Kennedy's motives likely did have an ideological component as well as a partisan one.

It's also true, as Michael Barone has observed, that "all procedural arguments are insincere, including this one." One could argue that Kennedy's brazenly instrumentalist appeal to Beacon Hill has the virtue of honesty. But democracy depends on procedural fairness and the appearance of procedural fairness, even if all political players have ulterior motives whenever they promote such fairness. By this standard, Kennedy's effort to change the Massachusetts law without even a pretense of concern for fairness was objectionable, and that is true even if we are objecting insincerely.

Of all Kennedy's official acts, perhaps the one that most rankles conservatives and cheers liberals was his successful effort to prevent the confirmation of Robert Bork to the Supreme Court in 1987. Kennedy took to the Senate floor and declared:

Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit in segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of million of citizens.
This was a slanderous attack on a good man. But it was effective, both tactically and strategically. The Senate voted down Bork's nomination, and the justice confirmed in his stead, Anthony Kennedy (no relation), has tipped the balance in more than a few cases toward the side Sen. Kennedy favored.

By his own lights, Ted Kennedy was right to oppose Bork's confirmation. Whatever the legal merits, there is little doubt that Bork's jurisprudential approach would have yielded fewer decisions consistent with Kennedy's idea of justice. But even those who accept that concept of justice ought to regret Kennedy's demagoguery. Common decency ought to count for something too.

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