This post continues a series of entries in which I am sharing documents that I found within the judicial-selection files at the Reagan Library.
Today, submitted for your perusal is another section of a notebook that White House staff prepared in 1986 to aid in the evaluation of candidates for a seat on the United States Supreme Court. Last week, I posted another section of this same notebook. That excerpt discussed Antonin Scalia, who ultimately was chosen to fill the vacancy on the Court created by Warren Burger’s departure. Anthony Kennedy was among the other possible nominees considered for what would become Scalia’s seat, and White House staff prepared this summary of Kennedy’s qualifications and confirmability.
Also, at the end of this document, you will find a Department of Justice overview of Kennedy’s jurisprudential outlook. The first paragraph of the DOJ report provides:
Like all the candidates, Judge Kennedy’s opinions generally reflect judicial restraint, classically defined. Unlike some other candidates, Judge Kennedy has published few legal articles and has had the misfortune to serve in the Ninth Circuit, probably the worst court of appeals in the country. Accordingly, he has had to deal with bad precedent and was probably deterred from writing bold, conservative opinions for fear of losing his panel majority or being reversed en banc. Further, his natural tendency is to narrow the scope of issues presented by a case and to avoid constitutional questions. Accordingly, his philosophical moorings remain an unknown quantity to a large extent.
Cue the foreshadowing music.