P U B L I C A T I O N S
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PAID ADVERTISEMENT
The Sacramento Bee, Justice Anthony M. Kennedy’s
home town paper, refused to print this ad.
The Bee could have learned how reliable the author is: a retired judge, a
fellow at Harvard’s John F. Kennedy Institute of Politics (other Fellows:
Sacramento native who volunteered the Monday after Pearl Harbor, was
General Stanley McChrystal and Senator Al Franken). All jobs duly
a 4-year WWII Vet, earning the Distinguished Flying Cross before his
performed with no hint of misconduct or inadequacy.
plane was shot down over Nazi Germany in 1943, was a distinguished
But the Bee summarily rejected Judge Tuttle and all he had to say, not
graduate of Stanford Law School (Order of the Coif), was Chief Counsel
even allowing him to use his own money to buy the space to say it. (Even
of the State Public Utilities Commission, arguing before the U S
Rupert Murdoch’s Neanderthal WSJ let Sean Penn buy space to vent at
Supreme Court; was Chief Counsel of the Jackson, Mississippi office of
length about Iraq: C. K. McClatchy [and Walter Jones] must be spinning
Lawyers’ Committee for Civil Rights under Law; and for a year was a
in their graves, appalled at their successor’s stupidity.)
Sacramento’s Idol: Feet of Clay
“The most dangerous decision ever” and “the
“Experience” is the key word. From the time
United, an enlightened 5-4 would have kept the
greatest threat to American freedom since Dred
Kennedy was ten years old his loving father,
plutocrats out of power.
Scott” are words used to describe the judicial
whom he chose to emulate, made his living
opinion (Citizens United) composed by an
giving voice to the wealthy and powerful in
Getting perspective on Kennedy’s judicial
honorable man, Supreme Court Justice Anthony Sacramento’s halls of governance. Kennedy
performance is difficult for another reason as
Kennedy, who is convinced that soulless
was brought up to believe such an occupation
well. There is an emperor’s robe element to any
corporations must enjoy the same political
was not merely tolerable but downright
appraisal of the Roberts court, of which
rights as human citizens in order to preserve
admirable, and it became his own after Harvard
Kennedy is such a critical part. Those in the
our democratic way of life.
Law School, until at age 38 he became a judge.
best position to accurately evaluate that court,
the top constitutional law professors at leading
I am a retired California Superior Court judge.
Justice Kennedy shocked many by the fervor of
schools, are in a difficult spot.
Like Kennedy, an honor graduate of a
his proclamation that corporations are entitled
prestigious law school; like Kennedy, a former
to free speech just like individual human
These academics cannot maintain their
teacher at McGeorge School of Law; and, like
beings. To understand this peculiar outlook we
influence as leaders in legal education without
Kennedy, a registered lobbyist for wealthy
should look at how he made his living until his
a close and friendly relationship with the Chief
corporations.
appointment to the bench in 1975. Such inquiry
Justice of the United States. If Stanford’s then
would disclose Kennedy’s professional life was
Dean, and top constitutional scholar, Katherine
Justice Kennedy’s decision in the Citizens
largely that of a lobbyist, devoted to political
Sullivan, had spoken bluntly (as did dissenting
United case has produced a valiant but futile
activity on behalf of wealthy corporations. Bear
Justice Stevens) about the travesty that was
Congressional struggle to do the impossible:
with me, please, for a moment.
Bush v Gore, she would have sacrificed any
devise a mere statute that can rectify an
chance of future cooperation with Roberts.
egregious 5 to 4 holding that the constitution
In 1949 upon graduating from Stanford Law
requires that corporations enjoy the same
School I worked for a San Francisco law firm
And not just Dean Sullivan personally would
political rights as human citizens.
that lobbied in Sacramento for the California
suffer from such a rupture; her school would
Bankers Association and the California State
have been wounded. When it came time for the
Some friends of Kennedy have said, after
Chamber of Commerce. A powerful lobbyist, a
Chief Justice and other judges of his party to
reading a first draft, why are you so unfair to
wheeler dealer second only to Artie Samish
pick, for example, academic experts to help
Sacramento’s icon, Mr. fair-minded even
(King of the Lobbyists, dethroned when his
federal courts devise sentencing rules, or anti-
though slightly to the right of center? To which
picture appeared in Life holding on his knee a
trust experts to create expedited procedures, or
I reply, you are damned right; I am not fair to
ventriloquist’s dummy labeled “California
whatever, Stanford Law School would be left
Tony; what I say is an advocacy piece; it does
Legislature”) was Tony Kennedy’s Dad,
out in the cold. It would relinquish its claim to
not purport to present both sides. And here is
Anthony, representing — as best as I can recall
preeminence.
why:
after 60 years — retail grocers and other
Thus it is that no leading law school dares to
I am sick enough to puke when I see Kennedy
substantial business interests. Two years after
comment on the Emperor’s nakedness,
feted by various law schools, including my
law school, on his father’s death in 1963,
permitting Chief Justice Roberts and his crew
own, as the ideal, well-balanced, and fair-
Kennedy took over his Dad’s lobbying
to enjoy an undeserved halo of respectability,
minded justice. He is, after all, the man directly
business, which later became the partnership of
shielded from tough analysis; and thus it is that
responsible for the two worst decisions of the
Evans, Jackson & Kennedy.
the field is left open, to be occupied only by an
last 50 years: Bush v Gore and Citizens United.
Kennedy’s entire legal career, except for two
superannuated amateur willing to squander the
[Stanford added to its dishonor when the
years right out of law school, was spent in his
family fortune.(Of course one should never be
faculty awarded Chief Justice Roberts high
father’s law office and its successor where the
needlessly abrasive but at what point is one
honors,, a ceremony where -- seized by a fit of
chief source of income seems to have been
obligated to speak the truth with honest
revulsion
lobbying and related legal activities such as
candor?)
representing trade associations.
-- I left in the middle. ]
This discussion portrays a legal academia
His warm and gregarious disposition — “a hale
driven by base motives rather than starry-eyed
Not only was Kennedy responsible for these
fellow, well-met” — served him well as he
idealism, so let us now consider an analysis
opinions, he enabled them by casting his swing
retraced his father and role-model’s footsteps in
more favorable to the professors, dressing up
vote to create a 5-4 majority for the Forces of
Sacramento’s corridors of power, making
this pig in the finest Max Factor cosmetics, so
Darkness. Had he instead cast his vote with the
friends of Republican politicians (helpful in his
that one might say how terribly important it is
Angels, Al Gore would have been president
judicial ambition) and never for a moment
for the academic world to remain friends with
[after all, he did win that election by 250,000
doubting the propriety, fairness, or wisdom of
Roberts, Scalia, Alito, Thomas, and Kennedy
votes]. And in Citizens United, an enlightened
corporate wealth deploying vast and unmatched
because exposure to polite, respectful, and
5-4 would have kept the plutocrats out of
power to influence government.
conciliatory moderates will lead these men
power.
He continued such work until with the help of
away from the disruptive extreme right.
Kennedy’s dismal role in all this is obscured by
his political allies he secured his first judicial
One might indeed say that, but only if one were
the force of his
appointment in 1975, at age 38.
utterly impervious to ridicule.
personality: he is a genuinely thoughtful and
Kennedy took over his father’s practice on his
If my view of Citizens United strikes you as
considerate man, loyal to his many admiring
death in 1963, continuing with it till his first
unduly alarmist, please read the opinions of the
friends who range along the entire political
court appointment in 1975. A quick check of
dissenting justices who sound the alarms even
spectrum.
the public records would reveal whether he was
more loudly than I do.
Justice Kennedy’s warm defenders — not
a registered lobbyist during the time before he
It should be noted that Americans of both
confined to Sacramento friends — have many
went on the bench. And if he lobbied, who he
parties line up overwhelmingly in opposition to
facts on their side establishing Kennedy’s
lobbied for. It is unlikely that it was the ACLU
Kennedy’s decree, as the Washington Post
intelligence and sensitivity, but they face an
or the Friends’ Committee on Legislation.
reported February 17, 2010:
obstacle: Kennedy’s own words, which stand
Martindale-Hubbell, the national directory of
forever as a monument to his thinking on this
law firms, for the year 1974 lists among
“Eight in 10 poll respondents say they oppose
issue.
“representative clients” of Kennedy’s firm the
the high court’s Jan. 21 decision to allow
unfettered corporate political spending, with
According to Kennedy, soulless money-making
California Association of Dispensing Opticians
65% ‘strongly’ opposed....”
machines, corporations whose only reason for
whose stated objective is “To promote
existence is to make more money, are truly
legislation that would continue the existence of
“The poll reveals relatively little difference on
“citizens,” enjoying the same political rights as
free-choice optician through licensing
the issue among Democrats (85% opposed to
human beings like you and me.
legislation,” and to this end they “have raised
the ruling), Republicans (76%) and
many thousands of dollars and hired the best
independents (81%).” [The poll involved was a
Plutocrats who already control both major
available legal and lobbying talent.”
Washington Post-ABC News poll.)
political parties are now given carte blanche by
Justice Kennedy is directly responsible for the
Kennedy to use their unlimited dollar power to
This ad cost $38,700 and was cheerfully paid
two worst decisions of the last 50 years: Bush v
hoodwink American voters by unrestricted
for by Richard E. Tuttle, retired judge,
Gore and Citizens United. Not only was he
advertising clap-trap into voting as the money-
California Superior Court, aka “The skunk at
responsible for these opinions, he enabled them
bags decree.
the garden party” who seeks to temper
by casting his swing vote to create a 5-4
Sacramento’s adulation for her favorite son the
How did it come about that this immensely
majority for the Forces of Darkness. Had he
“moderate” Supreme Court Justice Anthony M.
popular man, of large intelligence, warm and
instead cast his vote with the Angels, Al Gore
Kennedy.
moderate disposition, and vast experience
would have been president [after all, he did win
should write such an opinion?
that election by 250,000 votes]. And in Citizens
Viva la Prensa Libre!