LOWELL, Massachusetts — Senator Scott Brown committed an astounding blunder toward the end of Monday’s U.S. Senate debate that sent jaws dropping across the sold-out 5,700 seat Tsongas Center. Asked by moderator David Gregory who his model Supreme Court justice is, Brown stubmled a bit before replying, “Justice Scalia.” That prompted challenger Elizabeth Warren’s face to beam, and brought audible gasps and boos from the audience. Realizing he had erred by naming the notoriously conservative judge as a model justice while running as a self-described moderate in a liberal state, Brown added the names of Anthony Kennedy, John Roberts, and, oddly, liberal Sonia Sotomayor. He thinks they're all great, I guess.
The funny thing is that this question was a softball — for two reasons. One is that any competent U.S. Senate campaign makes dead certain its candidate knows how to respond to Supreme Court questions, since the senate is responsible for confirming appointees to the federal courts system, and these tend to come up in debates all over the country. Two, is that if you’re a moderate Republican in a liberal state, you’re answer to this question is “Anthony Kennedy,” and leave it at that.
One reason you say Anthony Kennedy is because no one knows who Anthony Kennedy is. The second reason you say Anthony Kennedy is because he is, among the politically literate class, the longtime famed “swing vote” of the Supreme Court — conservative in most opinions, but a judge who occasionally joins the liberal wing. You say Anthony Kennedy because it allows you to cast yourself as a conservative without scaring the ever-living shit out of independents who think there is in fact a constitutional right to privacy.
Kennedy was after all the crucial fifth vote in Planned Parenthood v. Casey (1992), where the court reaffirmed the constitutional right to privacy and abortion that was established in Roe v. Wade (1973). Scalia of course, joined the minority. Kennedy’s swing vote is so legendary, that for most of his tenure, the nation’s highest court has been facetiously referred to as the “Kennedy court” even though he has never been its Chief Justice. As a pro-choice Republican who likes to play down the middle, Brown had a softball to answer, and he blew it.
“I was amazed,” Warren said of Brown’s choice after the debate. “I think that Senator Brown has made clear the importance of the question of the control of the United States Senate” noting that the senate may confirm or reject appointments to the federal bench. “So when he says that Justice Scalia is his ideal….Supreme Court justice, then I think he’s giving us an idea of the kind of Supreme Court that Senator Brown would like to see.”
Without a doubt, Brown is going to be answering questions about this for a while, as he should. Scalia isn’t just a conservative justice; he’s the antagonist in the scary bedtime stories liberals tell to their children. I imagine the Warren campaign is, right now in the late hours after the debate, brainstorming ideas for a new ad with photos of Brown and Scalia next to each other and a narrator saying, “Scott Brown says that Antonin Scalia is his idea of a model Supreme Court Justice. Who is Antonin Scalia?” before firing off a full 40-man roster of objectionable opinions Scalia has promulgated in his 26 year career on the court.
That should be a fun one.
Video of Warren’s response after the debate to Brown’s choice