WEST PALM BEACH, Fla. — Justice Anthony Kennedy decried the way some senators question Supreme Court nominees, defended President Barack Obama's pursuit of empathetic judges and rebutted the idea of activist courts in a speech Friday in south Florida.
Kennedy said the Senate should not try to determine how high court nominee Elena Kagan would rule on specific issues, but should focus broadly on whether she has the qualities of a good judge.
"Just to ask questions to try to figure out how the judge would rule on a specific question seems to me a rather short-term exercise," he said, responding to a question from an audience member. "What you should ask is whether the judge has the temperament, the commitment, the character, the learning to assume those responsibilities."
The president drew wide criticism from Republicans last year when he said Sonia Sotomayor would bring "empathy" to the bench. Critics said that meant judges could bring personal whims and prejudices, but Kennedy disagreed.
"You certainly can't formulate principles without being aware of where those principles will take you, what their consequences will be," he told an audience of about 750 at a joint meeting of the Forum Club of the Palm Beaches and the Palm Beach County Bar Association. "Law is a human exercise and if it ceases to be that it does not deserve the name law."
Kennedy declined to offer Kagan any advice. He joked that if you ask him what makes a good judge, "you're going to get an autobiography."
Kennedy, who was nominated to the court by President Ronald Reagan, also dismissed an oft-repeated Republican criticism of "activist judges."
"An activist court is a court that makes a decision you don't like," he said .
The high court is currently made up of four conservatives and four liberals, with Kennedy's vote often deciding the most contentious cases. But he objected to being thought of as the court's "swing vote."
"The word 'swing vote' is to me somewhat of an abhorrence. It has additional imagery of these wild spatial gyrations and my jurisprudence is quite consistent," he said. "I don't swing around, the cases they swing around me."
Asked about the fact that Justice John Paul Stevens' retirement and Kagan's possible nomination would leave no Protestant members of the court, Kennedy refused to comment. But he did talk about the court's lack of geographic diversity, saying while "regionalism was of tremendous importance" for a century, the qualifications of judges has changed.
He recalled a lighthearted conversation with Justice Ruth Bader Ginsburg, in which he noted he was the only member of the court from the West Coast, though there are already three from New York: Brooklyn-born Ginsburg; Queens-raised Antonin Scalia; and Bronx native Sotomayor.
If confirmed, Manhattan-born Kagan would be the fourth New Yorker on the current court.
"I said, you know, this isn't fair," he recalled. "And she said, 'Oh no, we have Bronx, Queens and Brooklyn. We need Manhattan.'"