Will Justice Kennedy Flip?

In 2000, the SCOTUS by a 5 to 4 count knocked down Nebraska's ban on partial birth abortions. At the time, there were basically 2 swing voters on the Court, Justices O'Connor and Kennedy. Although Kennedy would vote to uphold the ban, O'Connor didn't.

Now, almost seven years later, the SCOTUS has revisited the issue of partial birth abortion in the form of a legal challenge made by pro-abortionists to the Federal statute, signed by President Bush, banning the procedure. Oral Arguments before the Court were made today.

With Alito having replaced O'Connor on the Court, it would appear that the Federal ban on partial-birth abortions will be upheld by a one vote margin. That is, of course, unless Justice Kennedy has somehow "grown" on this issue in the last seven years and votes with the Dark Side of the Court (Justices Ginsberg, Breyer, Stevens and Souter). The fact that something like this must be worried about provides strong evidence for one of the most likely negative consequences of yesterday's Dem takeover of Congress, and more specifically, the Senate: the appointment of another David Souter to the SCOTUS.

If the Senate confirmation hearing on the nomination of Robert Bork to the SCOTUS had taken place in 1986, Bork today would be a SCOTUS Justice. That is because in 1986, the GOP had majority control of the Senate. However, Bork's hearing was in 1987, the year the Dems took back the Senate after the 1986 mid-term election. Although they probably would have tried to do it anyway, the Dems control of the Senate made the "Borking" of Bork, and all other subsequent judicial nominees cut from a similar cloth, that much easier than it otherwise would have been. As a result of this new practice by the Dems, Ronald Reagan was effectively forced to nominate a relative unknown jurist with almost no paper trail. That unknown jurist ended up being the now Justice Anthony Kennedy who, at best, has had a mixed record on social issues like abortion. Indeed, the Dems practice of "Borking" eventually led to the nomination of David Souter, who is considered by all non-judicial activist proponents (i.e., people who think judges shouldn't be making up rights and laws out of thin air) to be nothing short of a disaster.

Now that the Dems have again regained control of the Senate, I fully expect that if Dubya gets the chance to fill another seat on the SCOTUS, he will have no choice but to nominate another Anthony Kennedy, or worse, another David Souter. While it is true that Dubya has shown a propensity to do this anyway (see Harriet Miers), GOP control of the Senate provided the necessary leverage to make the President change course and nominate what ended up being Sam Alito. With this leverage now gone until at least 2008, I'm not so sure that I want any seats to open up on the SCOTUS.