Friday, September 3, 2010

Kennedy: "The Moment Will Form Your Decision"

Yesterday's post covered a lighter moment in Justice Anthony Kennedy's presentation to the Ninth Circuit Judicial Conference on August 19, 2010.  Today's post covers a more serious, thought-provoking part of the same presentation.

Justice Kennedy addressed why judges do not share their views on pending cases.  Although the context had nothing to do with the pending Prop. 8 case, it was hard not to think of it as he spoke.  As widely discussed in the media, Kennedy would be the swing vote if the Prop. 8 case reaches the Supreme Court on its merits (coming from the Ninth Circuit, which he was addressing).

It is acceptable to acknowledge "moral" reservations, Kennedy said, but not to make up one's mind or declare a position in advance.  "We owe it to the Rule of Law to keep an open mind."  Continuing, Kennedy stated: "The moment will form your decision.  And it will be a very difficult decision."

The point about not discussing pending cases related to a role-play Kennedy does for students (the trial of Hamlet), in which he is the judge, i.e., sharing his views would impede the vitality and integrity of the exercise.  The point about not prejudging matters came from conversations Kennedy had with Ronald Reagan about the latter's "moral concerns" related to nuclear warfare, specifically, mutually assured destruction.

Video (see 50:00-51:50)

More on the Hamlet role-play (47:00-50:00)