Thanks, Kathryn, for alerting us to the op-ed Senator Kennedy will have in tomorrow’s Washington Post. As a general matter, I am actually sympathetic with Kennedy’s argument (which I’ve made here before) that the Senate “should require that nominees share [their thinking about legal issues] with the Judiciary Committee, and not pretend that such candor is tantamount to prejudging specific cases.” But the senator from Massachusetts provides all the evidence one needs that, for some senators anyway, it is not legal thinking that matters at all. It is only results. From start to finish, this column amounts to one long whine that Chief Justice Roberts and Justice Alito don’t share Senator Kennedy’s view that Senator Kennedy’s policy preferences should be enacted by the Supreme Court. What Kennedy doesn’t have is anything resembling a legal argument against a vote cast, or an opinion written or joined, by either of these two justices.

Just twice in the column, Kennedy points to actual colloquies he had with Roberts and Alito when they were nominees, and tries to make a case that they were “misleading” or less than candid in their replies, based on their behavior in subsequent cases before the Court. Here’s the first instance:

During Roberts's hearing, I asked him about his statement that a key part of the Voting Rights Act constitutes one of "the most intrusive interferences imaginable by federal courts into state and local processes." In response, he suggested that his words were nothing more than an "effort to articulate the views of the administration . . . for which I worked 23 years ago."

Kennedy alleges that Roberts’s assurances are undercut by his views in LULAC v. Perry, the Texas redistricting case decided last month. Not so. The complete colloquy between Kennedy and Roberts during the latter’s confirmation hearings was about Roberts’s 1982 argument, on behalf of the Reagan administration, that section 2 of the Voting Rights Act should remain concerned with the intent, not the effects, of redistricting laws, as the Supreme Court had held in Mobile v. Bolden two years earlier. Roberts argued at that time that violations of that section “should not be made too easy to prove since they provide a basis for the most intrusive interference imaginable by Federal courts into State and local processes.” As Roberts remarked during the hearing, the Reagan administration lost this argument, with the reauthorized VRA embodying an effects test that substantially reversed the Mobile decision.

So has Chief Justice Roberts worked to restore that earlier standard or to undercut the VRA as passed by Congress? No, and Senator Kennedy doesn’t quite utter the lie that he has done so. Instead he proceeds by insinuation, saying the Court held that the Texas law “protect[ed] a Republican legislator against a growing Latino population” and charging that Roberts “conclud[ed] that the courts should not have been involved and that it ‘is a sordid business, this divvying us up by race.’”

Well, now. Roberts disagreed with the majority of the Court about a standard of decision, not derived from any reasonable reading of the VRA, that involves judges in fine-tuning the ethnic characteristic of districts to an amazing extent. Here is the context of Roberts’s already-famous “sordid business” remark:

Whatever the majority believes it is fighting with its holding, it is not vote dilution on the basis of race or ethnicity. I do not believe it is our role to make judgments about which mixes of minority voters should count for purposes of forming a majority in an electoral district, in the face of factual findings that the district is an effective majority-minority district. It is a sordid business, this divvying us up by race.

Can Senator Kennedy please tell us what exactly is the inconsistency between what Roberts said about VRA on the Hill last September 13, and what he said in the Perry case this June 28?

For Alito too, Kennedy has just one example of “misleading” that relies on an alleged discrepancy between his confirmation testimony and his subsequent judicial behavior. Here’s Kennedy:

During Alito's hearing, I asked him about a 1985 job application in which he stated that he believed “very strongly in the supremacy of the elected branches of government.” He backpedaled, claiming: “I certainly didn't mean that literally at the time, and I wouldn't say that today.”

This “backpedaling,” Kennedy charges, has been falsified by Alito’s agreement with Justice Thomas’s dissent in the Hamdan case, to the effect that judges have a “duty to accept the Executive's judgment in matters of military operations and foreign affairs.”

First of all, Justice Thomas wrote in Hamdan of the Court’s “well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs” (my italics), not of a duty to “accept” such judgment as Kennedy has it. These little matters of verb choices can make some difference, no?

But back to the Alito-Kennedy colloquy the senator purports to describe. When Kennedy questioned the nominee on January 10 about his 1985 statement about the “supremacy of the elected branches of government,” the following exchange took place (with my italics below). See if you see any “backpedalling,” or anything contradicted by Alito’s joining with Thomas in the Hamdan case:

Judge Alito: It’s an inapt phrase, and I certainly didn’t mean that literally at the time, and I wouldn’t say that today. The branches of Government are equal. They have different responsibilities, but they are all equal, and no branch is supreme to the other branch.

Senator Kennedy: So you have changed your mind?

Judge Alito: No, I haven’t changed my mind, Senator, but the phrasing there is very misleading and incorrect. I think what I was getting at is the fact that our Constitution gives the judiciary a particular role, and there are instances in which it can override the judgments that are made by Congress and by the Executive, but for the most part our Constitution leaves it to the elected branches of Government to make the policy decisions for our country.

Senator Kennedy: I want to move on. . . .

“Moving on” was a smart thing to do in January, Senator. You might want to try it again.