Aug
31
A tale of two Kennedys
August 31, 2009 | 9 Comments
Kathryn Lopez links to an excellent (no, really) Ross Douthat column that puts into perspective the different lives of a pair of Kennedy siblings.
For abortion opponents, cruel ironies abounded in this sibling disagreement. Because of Eunice Shriver’s work with the developmentally disabled, a group of Americans who had once been marginalized and hidden away — or lobotomized, like her sister Rosemary — was ushered closer to full participation in ordinary human life. But because of laws that her brother unstintingly supported, that same group was ushered out again: the abortion rate for fetuses diagnosed with Down syndrome, for instance, is estimated to be as high as 90 percent.
In 1992, Eunice participated in the last significant effort to push the Democratic Party away from abortion on demand, petitioning her party’s convention to consider “a new understanding” of the issue, “one that does not pit mother against child,” but instead seeks “policies that responsibly protect and advance the interest of mothers and their children, both before and after birth.” That same summer, in Planned Parenthood v. Casey, the Supreme Court upheld a near-absolute right to terminate a pregnancy — a decision made possible by her brother’s demagogic assault on Robert Bork five years earlier, which helped doom Bork’s nomination to the court.
I disagree only with Douthat’s claim earlier in the article that Ted deserved the more extended send-off because of his importance as a legislator. If anything, the fact that Kennedy did nothing his entire adult life other than to serve as a U.S. Senator is precisely why any grand celebration of his life is absurd, even if we disregard his other deficiencies. In founding the Special Olympics Eunice did more with her life than her brother did as serving a permanent parliamentarian. There is nothing honorable about serving as a Congressman for half a century. Again, this has nothing to do with Ted Kennedy’s personal failings or his politics. Individuals like Kennedy, Stevens, Byrd, and Thurman – to name but several of the worst offenders – spent inordinate amounts of time in the US Senate. The idea that someone would be a member of Congress for such extended periods of time would have flabbergasted the Framers.
Even had Kennedy shared his sister’s sense of morality when it came to the unborn, his funeral would still not have merited one-tenth the attention it did receive. Unfortunately he didn’t, which makes the unequal attention paid to their deaths all the more difficult to take.
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9 Comments so far
Admittedly, this is a side note based on your entry, but one I’d love to pick your brain about nonetheless.
What do you make of the inconsistency in the American expectation for the levels of federal government? You correctly describe how the Founders would have had no concept of a permanent legislator like Ted Kennedy. And we all know that Washington himself established the tradition (much later memorialized) of a term-limited presidency. Certainly most Founders did not want a lifetime executive, something which would obviously resemble a monarch.
Why then were those same Founders so much more comfortable with the notion of a permanent judiciary? The easy answer is that they never envisioned the activist role the Court could play in shaping law. And that is true. But I don’t think it’s thorough enough. Nor is the idea of appointed vs elected. If anything, that difference should make the Founders and others more fearful of a permanent judiciary. And while it’s more blatant in modern times, from the near beginning (Marshall), the judiciary has not surprisingly found opportunities to claim and then expand its authority in shaping law.
And this was probably inevitable. If you create a government with three theoretically separate and equal branches, they will grow in such a manner that any one branch will seek to expand its authority when it feels it is not keeping up with the others. Our nation’s history has well proven that.
Long story short: why have we always accepted the notion of a permanent federal judiciary when we otherwise have (in theory anyway) opposed the notions of a permanent executive and permanent legislators??
A lot of people are disgusted with the idea of Ted Kennedy as a permanent legislator. Why are we not equally disgusted with John Paul Stevens being a permanent judge? And this preference seems to be ingrained in our system’s consciousness from the very beginning.
As you know, I’ve always been a big term limits guy. And in a perfect world, I think I’d want them limiting the permanency of power of all federal judges, just as I would prefer defined time limits on the executive and legislative branch. If I were a Founding Father in 1787, I wouldn’t have wanted ANYONE to become a permanent executive, legislator, or judge. I think the guys in robes have gotten off way too easily for 225 years and I doubt it’s by accident.
The short answer: read Federalist 78. That explains the thinking behind life-appointments.
But no, the Framers did not envision such a powerful judiciary. The idea behind life tenure is to guarantee judicial independence. They didn’t want the judiciary to be too dependent on the legislative branch.
I’m not sure that life tenure is the problem. The simple fact of the matter is that these progressive Justices have a warped view of the Constitution. Swapping them out every few years won’t make a difference without a fundamental change in their approach.
Most of the Founders would have been surprised at jurists who stayed on the bench for life. In those days being a judge wasn’t that prestigious and it was not unusual for a fellow to be on the bench for a few years and then move on to other things. Andrew Jackson at the state court level did precisely this in Tennessee. Someone who became a Judge and stayed one forever would have been looked at as somewhat odd by the Founders and probably lacking in ambition.
I will check that reading out, CC. I figured you’d have a good source to turn to for this question. I’m just not sure how realistic judicial independence is anymore. Let’s face it – as Donald points out the notion of a judiciary that we have now is very different than what was intended. And it’s likely to stay that way, if not get worse. Therefore, the lifetime thing becomes more and more frightening to me. I don’t care if someone is ruling from the left or from the right. That’s too much power with too little accountability. And it no longer matches the rest of our system. We don’t trust our executive or legislators like that. Why then trust our judges?
Well, there are mechanisms for impeachment. Unfortunately, they are rarely used. Kind of a “one hang, we all hang” mentality that keeps it from being implemented as often as it should be.
Then again, the rulers we get reflect the populace that elects them.
PS – your spam test is one of the easiest to read I’ve come across. Kudos!
C Matt:
Can’t say I have much to do with that (the spam filter), but thanks!
It seems to me like the source of the framers’ horror would be the political machine which keeps a hulk like Kennedy from ever getting voted out. This is made possible by vote-buying, patronage appointments, etc. They would be enraged to see how this bureaucratic apparatus replaced the “informed electorate” which is supposed to dispassionately select leaders.
[...] My good friend over at The Cranky Conservative made the following statement yesterday afternoon in the midst of a much larger post about the late [...]
Simplistic, I know, but could it also be that a “lifetime” appointment in those days didn’t mean 40 years or more?