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To mark our 30th anniversary, we’ve reached into our archives to highlight key events and players who made a difference since we made our debut. A version of the following article appeared in the Feb. 25, 1988, edition…
In the poisoned post-Bork atmosphere surrounding the Supreme Court, it is probably no surprise that nominee Anthony Kennedy’s first official act as justice-to-be has proven controversial. Although his Sacramento office won’t confirm a thing, it already has been reported that in addition to some of the 9th Circuit clerks he intends to bring east, Kennedy has hired as a law clerk Peter Keisler, currently serving as assistant White House counsel. By all accounts, Keisler, 27, is a brilliant young lawyer. But already something of a liberal whisper campaign has arisen over the appointment — not suggesting it is illegal or improper, but questioning its wisdom and what it symbolizes about Kennedy. Item: Keisler is a 1985 graduate of Yale Law School and was once a clerk to former Judge Robert Bork. Those credentials would normally be viewed as unalloyed assets, but these are not normal times. Item: Keisler was a constant companion to Bork, then Kennedy, during their confirmation hearings, advising and ushering them through the process. Keisler took on the Bork campaign as a labor of love, then was assigned a similar role for Kennedy. Item: Keisler is a member of the board of directors of the Federalist Society and has reportedly made what liberals call “Borkian” speeches at Federalist Society gatherings. In the company of liberals, mention membership in the Federalist Society and you need mention no more: You are viewed as a foot soldier or guerrilla warrior in President Reagan’s battle to pervert the federal judiciary. Item: As an aide to White House Counsel Arthur Culvahouse Jr., Keisler almost certainly devoted some of his time to the Iran-Contra affair and to other matters that could end up at the Supreme Court.I n short, there is plenty in Keisler’s background, for conspiracy theorists at least, to justify asserting that his appointment is further proof that Kennedy is what critics have called a “Bork in sheep’s clothing,” and that once seated, Kennedy will prove a staunch ally of the Meese-Bork school of legal thinking. Keisler is a White House advocate, so therefore, Kennedy will be, too, the thinking goes. Keisler, reached at the White House, would not comment on any aspect of his appointment or his current work at the White House. But his supporters point out that any number of justices have gone to the Court from strong positions of advocacy in the executive branch — Robert Jackson, Byron White, and William Rehnquist, to name some. To skewer a clerk for taking a similar path is unfair, they say. JUSTICE AS LITTER BUG If you’ll be arguing before the Supreme Court soon, and you’re wondering how to dress to win over Justice Kennedy, here’s a tip: Green is his favorite color. Or at least it was 34 years ago, when he was profiled by his high-school newspaper, the McClatchy Prospector. The Sacramento Union unearthed the article and reprinted it recently. Among Kennedy’s other favorites were: food, hangtown fried oysters; pastime, golf; singer, Bing Crosby; and movie star, Alec Guinness. His favorite class: world affairs. The article went on to say that Kennedy’s secret desire was “to be a hermit,” and that his pet peeve was being confused with Wally Cox. Apparently Kennedy had already been to Washington, D.C., at least once, because the article noted that his “big moment” came when “he dropped his gum off the Washington Monument on his trip to the East.”
Update: Last month, Justice Kennedy celebrated his 20th anniversary on the Supreme Court. One thing is clear: He’s no Bork. Kennedy has been a key swing vote in several major cases, much to the consternation of conservative critics. His former law clerk has remained a conservative favorite. Peter Keisler went on to become a partner at Sidley Austin and joined George W. Bush’s Justice Department in 2002. There, he headed the Civil Division and briefly served as acting attorney general after Alberto Gonzales resigned. Bush has nominated Keisler for a seat on the U.S. Court of Appeals for the D.C. Circuit. The nomination, however, has been held up in the Senate. As we reported in our March 3 issue, liberal critics acknowledge he’s a pro — but question whether the D.C. Circuit needs to have an 11th seat filled.

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