As I read one of George Will's recent columns, I was struck by his highly selective recital of the "facts" surrounding the recent Supreme Court death penalty ruling. He refers to Justice Kennedy occupying "the seat that 52 Senate Democrats prevented Robert Bork from filling in 1987". He neglects to mention that six Republican Senators also voted against Bork, while 2 Democrats voted for him, resulting in a final tally of 42 for, and 58 against. He also fails to mention that Justice Kennedy was subsequently nominated by Republican President Reagan and confirmed. Additionally, he fails to mention that three of the five Justice majority in this recent decision were appointed by Republicans, and were considered conservative at the time of their appointment.

Republican presidents appointed seven of the nine current Justices. It is an interesting measure of how extremely far to the right one must be now in order to not be considered "left" by conservative columnists such as Mr. Will.

Mr. Will places the Bork nomination as the start of "the descent into the scorched-earth partisanship" of judicial confirmations that now rages in the Senate. This is certainly not true. That descent began in 1995 as Senate Republicans, with their new majority, began denying Clinton judicial nominees hearings and up-or-down confirmation votes. In the final two years of the Clinton Presidency, Republicans used "holds" and failed to give hearings to sixty percent of Clinton's nominees to the Federal bench. The vacancy situation was so bad that (conservative, Republican appointed) Justice Rehnquist even rebuked Senate Republicans in 1998, and told them to do their jobs.

In contrast, Senate Democrats have blocked only ten Bush nominees, while confirming over 200, for a refusal rate of only
Mr. Will derides the majority Opinion as written by Kennedy by taking small snippets and attaching his own context to them. Concerning international consensus, he writes, "...(Kennedy) considers it unimportant that the United States attached to one of the conventions language reserving the right "to impose capital punishment ... for crimes committed by persons below eighteen years of age."..."

In spite of Mr. Will's clever editing, Kennedy did indeed consider it important; after all, he included it in the Opinion-which Mr. Will notes-and he addresses it extensively, which Mr. Will fails to note. Will then dismisses the "other convention Kennedy cites" as never having been ratified by the US. That would be the United Nations Convention on the Rights of the Child. He fails to mention, although Kennedy does, that only one other country on the planet has failed to ratify it. Who do we keep company with here? Somalia.

Will mocks Kennedy as a "Sociologist" then proceeds to prove his point by taking a few more snippets, totaling 40 words or so, from eight pages of Opinion which analyzes juvenile criminal culpability. I could apply the same standard and easily mock Mr. Will's column by extracting a three word quote and putting my own spin on it.

Finally, Mr. Will mentions Justice Scalia's dissent. Like Mr. Will, Justice Scalia is terribly skeptical of concepts such as "evolving standards of decency", "national consensus" and certainly "international consensus". Justice Scalia includes this little gem in his complaint:

"The Court ignores entirely the threshold inquiry in determining whether a particular punishment complies with the Eighth Amendment: whether it is one of the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted...(T)he evidence is unusually clear that the Eighth Amendment was not originally understood to prohibit capital punishment for 16- and 17-year-old offenders... (T)he death penalty could theoretically be imposed for the crime of a 7-year-old..."
Using Scalia's standard of Constitutional interpretation, a Supreme Court is entirely unnecessary. A sixth grader with good reading skills could settle all constitutional issues for us.

It should be noted, as Mr. Will did, that Justice O'Connor wrote a separate dissent. It should also be noted, as Mr. Will did not, that she wrote it to distance herself from this sort of reasoning by Justice Scalia. Mr. Will writes that "If Kennedy represents the mainstream, it is time to change the shape of the river". The shape of the river that Scalia and Will would like would be one that flows directly back to the 18th century.