Bench Memos

Democratic Confusion on the “Roberts Five”

During Judge Kavanaugh’s nomination hearing today before the Senate Judiciary Committee, Sen. Sheldon Whitehouse devoted much of his opening statement to criticizing what he called the “Roberts Five” and recited a litany of decisions involving the familiar 5-4 split on the Court in which the liberal bloc lost. The strange thing is Justice Kennedy was one of those five in the majority.

Sen. Richard Blumenthal, himself a former Supreme Court clerk, strikes a very different note on Justice Kennedy. He tweeted in June that Kennedy’s retirement was “gut-wrenching” and that “The President must appoint an open-minded&fair jurist in Justice Kennedy’s mold.”

So which is it? To be sure, Blumenthal’s view of Kennedy is more in line with that of the editorial page of the New York Times, which found the justice’s retirement “crushing,” than Whitehouse’s one-dimensional characterization. Whitehouse has a penchant for attributing judicial decisions he does not like to the influence of special interests, the type of conspiratorial thinking he shuns when it comes to the bloc voting of liberal justices.

In any event, Senate Judiciary Democrats don’t seem to have their story straight on Justice Kennedy, let alone on the nominee who would replace him.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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