WEST PALM BEACH, Fla. - Justice Anthony M. Kennedy on Friday decried the way some senators question Supreme Court nominees, defended President Obama's pursuit of empathetic judges, and rebutted the notion that courts can be activist.
Kennedy told a South Florida audience that 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, answering a question. "What you should ask is whether the judge has the temperament, the commitment, the character, the learning to assume those responsibilities."
The president drew 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, 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 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, who was nominated 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 seen as the "swing vote."
"The word swing vote is to me somewhat of an abhorrence," he said. "I don't swing around; the cases, they swing around me."
Addressing a lack of regional diversity on the current court, he recalled a lighthearted conversation with Justice Ruth Bader Ginsburg.
He had noted to her that 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, with Manhattan-born Kagan likely to be the fourth.