An interesting question.
“Which existing Supreme Court Justice would you not have nominated?” Pastor Rick Warren to Barak Obama. This was a very good question and we had some interesting answers from both candidates. McCain, of course would not have nominated the four liberal members and Obama chose Justice Thomas, Scalia, and Roberts. Instead of commenting on their answers, I asked myself that same question. I decided that I would not choose Justice Kennedy.
The reason I chose Justice Kennedy boils down to the Rule of Law. Paraphrasing Hayek in the Road to Serfdom, the rule of law boils down to the ability to accurate predict the outcomes of various situations in the legal system. Kennedy’s lack of a strict overall philosophy makes any predictions difficult if not impossible. Although I usually disagree with Ginsburg, Breyer, Souter and Stevens, and wouldn’t nominate them either, I can usually predict which way they vote. They have fairly set philosophies, and can on occasion write brilliant opinions with them. Both Kennedy and the now retired O’Connor lacked this consistency which is important in maintaining a Rule of Law.
