Far More Judicious

By GEORGE J. CHURCH

On his third swing at trying to nominate a Supreme Court Justice, Ronald Reagan adopted the strategy followed by many a batter on the verge of striking out: he stopped going for the home run and tried for the political equivalent of a clean single. Rather than again choosing a hard-line ideologue to replace the moderate Lewis Powell, the President last week selected the kind of jurist many of his pragmatic supporters felt he should have chosen at the start. Indeed, he picked the very man they had been urging from the beginning: Anthony Kennedy, a thoroughly experienced appeals-court judge noted both for his mainstream conservative principles and for the open-minded way he applies those principles on a case-by-case basis.

After the bruising battles that led to the rejection of Robert Bork and the unexpected withdrawal of Douglas Ginsburg, few liberals or conservatives were in any mood for another knockdown brawl. And, at least at first glance, one seems unlikely. No one could find anything in either Kennedy's Norman Rockwell personal background or his twelve-year record on the Ninth Circuit Court of Appeals in Sacramento that would prevent him from being confirmed as the nation's 104th Supreme Court Justice, and potentially a long-serving one. At 51, Kennedy is young enough to be shaping court decisions well into the 21st century, long after some aging present Justices are gone.

Announcing Kennedy's selection Wednesday, Reagan and his aides put on a show of sweet harmony. Attorney General Edwin Meese, architect of the disastrous Bork and Ginsburg nominations, and Chief of Staff Howard Baker, who had fought all along for a Kennedy-style moderate, made a point of posing ! together wreathed in grins. The President appealed for "cooperation and bipartisanship" in Kennedy's confirmation hearings and pledged to do his part. "The experience of the last several months has made all of us a bit wiser," he said. Reminded by reporters of his pledge after Bork's rejection to give the Senate a nominee they would "object to just as much," Reagan shrugged it off as a "facetious remark" made at a partisan gathering..

Kennedy was brief and smooth. Was he "upset" about being Reagan's third choice? "I am delighted with this nomination," he deadpanned, to laughter. Was he concerned about the "intense scrutiny" he would face? Said the judge diplomatically: "I'm looking forward to this scrutiny that the Senate should give any nominee in the discharge of its constitutional duty."

Unlike the hapless Ginsburg, Kennedy offers an extensive record for the Senators to study; as an appellate judge he participated in 1,400 decisions and personally wrote more than 400 opinions. At least two have made legal history. In 1980 he ruled against the so-called legislative veto, a once common practice under which Congress would grant certain authority to the Executive Branch but reserve to itself the right to disapprove particular actions exercising that authority. Kennedy declared that the practice violated the constitutional separation of powers. In a 1983 dissent, Kennedy argued that a court should admit evidence gathered by police under a search warrant that they believed in "good faith" to be properly executed but that was later found invalid. The Supreme Court eventually ruled his way on both subjects.

Kennedy is conservative enough to have written opinions displeasing some feminists, gay-rights activists and civil libertarians. But students of his career agree that his hallmark is conservatism in a quite different sense: he avoids propounding sweeping doctrines of how to interpret the Constitution. Instead, he often decides cases on the narrowest possible grounds. Says Alex Kozinski, a former Kennedy clerk and now a colleague on the Ninth Circuit bench: "Judge Bork is an academician. He has an overall theory of the law and the Constitution, and he tries to fit cases into that theory. Tony Kennedy is much more in the mold of Lewis Powell. He is a conservative and an advocate of judicial restraint, but these are simply overall principles. He takes cases one by one."

One striking example of the difference: in separate cases, Bork and Kennedy ! both ruled that the Navy could dismiss homosexuals from the service, but for very different reasons. Bork took the occasion to attack a long line of Supreme Court decisions reading into the Constitution a right to privacy. Kennedy, in contrast, noted that homosexuality "might be constitutionally protected activity in some other contexts," but not in the Navy, which has a special need to maintain order among men forced into close contact with one another. He added that the regulations requiring discharge of homosexuals, though not unconstitutional given the situation, were nonetheless "harsh" and not necessarily "wise."

In another celebrated case, Kennedy slowed but did not stop the movement to require equal pay for women and men performing jobs believed to be of "comparable worth." The background: a study of Washington State's employees found that pay for jobs filled mostly by women averaged 20% less than wages for different jobs requiring supposedly comparable skills that were held mainly by men. A federal judge held that this constituted illegal sex discrimination and awarded damages estimated as high as $1 billion to female workers.

No, said Kennedy, writing for a unanimous three-judge panel of the appeals court. There was no proof that the gap in pay scales reflected discrimination rather than the play of market forces. Federal civil rights legislation is not "intended to abrogate fundamental economic principles such as the law of supply and demand" and thus "does not obligate ((the state)) to eliminate an economic inequality which it did not create."

Nonetheless, Kennedy's opinion did not slam the door on comparable worth. He left open the possibility that in a different case -- and several are pending in other states -- a different set of facts might establish that unequal pay scales did indeed result from discrimination and were thus illegal. Says Winn Newman, an attorney for the union that lost the Washington case: "His decision went to the facts. The open question is what facts constitute a basis for a court to infer that the reason for disparity was discrimination."

About a fourth of all Kennedy's opinions concern matters of criminal procedure, and in those cases he has generally taken a law-and-order line. For example, he upheld the death penalty for a Nevada convict, already jailed for murder, who committed another murder in prison. But Kennedy has shown sensitivity to the plight of individuals, something that critics found lacking in Bork. One case arose after police discovered drugs on an immigrant crossing the Mexican border by subjecting the man to a body-cavity search. "I remember him agonizing over that," says Kozinski. The suspect was clearly guilty, but Kennedy "felt he had been treated way below the standards for a civilized society." So he joined in overturning the conviction.

In First Amendment cases, Kennedy's opinions have pleased the press. In 1978, for example, a plaintiff who had been convicted in an insurance scandal demanded to see film of a show NBC was preparing on the case, arguing that it might inflame public opinion and jeopardize his chances of parole. A lower court ordered NBC to surrender the film, but Kennedy struck down the ruling as being "aimed toward prepublication censorship." Said the judge: "It is a fundamental principle of the First Amendment that the press may not be required to justify or defend what it prints or says until after the expression has taken place."

Kennedy's case-by-case approach means that it is hard to make sweeping generalizations about how he would rule on the great legal issues facing the Supreme Court: affirmative action, Government involvement with religion, abortion and privacy rights. Says Deputy Solicitor General Donald Ayers, who argued several cases before Kennedy: "I always had the sense that he approaches each case with no predilection about who will be the winners or losers." Kozinski asserts that Kennedy sometimes is open to change even after reaching a preliminary decision. When clerks had trouble framing an opinion according to the judge's instructions, says Kozinski, Kennedy would muse that "if the case wouldn't write that way, maybe the result was wrong."

Former students of Kennedy's at the McGeorge School of Law in Sacramento report that he spent much class time discussing privacy cases. He gave some the impression that, unlike Bork, he does recognize a constitutionally protected right to privacy. But he seemed sympathetic when a student once argued that Roe vs. Wade, the 1973 abortion-right decision, was a political compromise, not solidly based on constitutional principles.

Kennedy has not given any hint whether he would uphold or reverse the decision if given the chance (which is certain to come: Roe was reaffirmed in 1986 by only 5 to 4, with Powell casting the deciding vote). Stanford Law Professor Jack Friedenthal predicts, "He would start with the fact that it has been decided. I strongly suspect he would never have voted for it in the first place, but part of judicial restraint is the question of whether a person is going to reverse a Supreme Court decision that is now part of the fabric of society." Even if it is not reversed, however, Roe could be modified. Like Justice Sandra Day O'Connor, Kennedy could end up as a swing vote, helping to refine the boundaries of the right to abortion, based on changing medical and social circumstances.

As might be expected, Kennedy's case-by-case approach stirs neither great enthusiasm nor dead-end opposition in the Senate. Jesse Helms, North Carolina's conservative curmudgeon, once growled, "No way, Jose," at the prospect of Kennedy's nomination. But last week he allowed that Kennedy might make a "fine" Justice. Liberals are mostly being noncommittal, but they will have trouble taking back their comments during the Bork fight, when some identified Kennedy as the type of conservative they could accept. Harvard Law Professor Laurence Tribe, who helped lead the opposition against Bork, describes Kennedy as "decent instead of dogmatic, sensitive instead of strident." Those may not be the qualities of a legal groundbreaker, but they are far from the worst qualifications for judging the most explosive issues in American life, all of which sooner or later wind up before the Supreme Court.

With reporting by David Beckwith and Anne Constable/Washington