President Faces Depleted List of Court Prospects

With one Supreme Court nominee lost to an attack from the left and a second downed by the right, President Reagan on Saturday faced a depleted list of prospects, a narrowed playing field and a political calendar that is beginning to work against him.

“We would hope to have a nominee early next week,” said a White House official who asked not to be identified, “although I really can’t say for sure when.”

The two other finalists from two weeks ago, when the President made the ill-fated decision to nominate Douglas H. Ginsburg, both have political black marks against them.

Anthony M. Kennedy, 51, a federal appeals judge from Sacramento, was opposed by conservatives led by Sen. Jesse Helms (R-N. C.).

And William W. Wilkins Jr., 45, a federal appeals judge from South Carolina, had strong opposition within the Justice Department. He made the final cut largely as a favor to Sen. Strom Thurmond of South Carolina, the senior Republican on the Senate Judiciary Committee.

“Obviously, Mr. Kennedy and Mr. Wilkins will be considered,” the White House official said. “There will be others . . . but I think it’s fair to say that those are the most likely . . . leading candidates.”

Ginsburg withdrew Saturday after conservatives turned against him when he revealed that he had used marijuana as a Harvard Law School professor. Ginsburg, Kennedy and Wilkins had been the three finalists from a list of 13 candidates whose names were circulated among Republican senators.

“We have a very excellent list of very able and highly qualified candidates,” Atty. Gen. Edwin Meese III told reporters Saturday. “There could be other names added, but I haven’t heard of any.”

A Justice Department official said that he would not rule out the possibility that Reagan would go outside the list of 13 candidates, although he said that opposition to some others on the list had not been so strong as to prevent their being reconsidered.

Among those possibilities are two other federal appellate judges: Ralph Winter, 52, of New Haven, Conn., and Laurence H. Silberman, 52, who serves on the same circuit court here with Ginsburg and Robert H. Bork. Bork, Reagan’s first nominee to fill the Supreme Court vacancy created last June by the resignation of Lewis F. Powell Jr., was defeated by the Senate, 58 to 42, after a liberal assault on his record.

Silberman served as undersecretary of labor, deputy attorney general and ambassador to Yugoslavia during the Richard M. Nixon and Gerald R. Ford administrations and then became a San Francisco banker before Reagan named him to the court.

Attacked by Conservatives

Winter, a former colleague and friend of Bork at Yale Law School, has drawn some conservative fire because he wrote a 1974 law review article that appeared to some readers to question the Meese-endorsed doctrine that the Constitution should be interpreted according to the “original intent” of its authors.

Intensifying the Administration’s predicament is the political calendar. The Senate Judiciary Committee, which had set Dec. 7 for the beginning of Ginsburg’s confirmation hearings, will probably now have to wait until next year to hold hearings on the new nominee.

If the next nominee is as controversial as the previous two, drawn-out hearings could push the final Senate vote into the heart of the presidential election season, when Senate Democrats may feel tempted to turn down any Reagan nominee in the hope that a Democratic President would be elected and could then fill the court vacancy.

It was not clear Saturday whether Meese, after the embarrassing pullout of Ginsburg and the defeat of Bork by the largest negative vote cast by the Senate on a Supreme Court nominee, would continue to be the key adviser on Reagan’s next choice of a nominee.

Conservative columnist James J. Kilpatrick called on Meese Saturday to resign for bungling the Ginsburg nomination. “And when they get around to picking the next nominee,” Kilpatrick said on the television show “Agronsky & Company,” “I hope Ed Meese is not within 100 miles of the White House.”

Problems Compounded

Meese’s problems are compounded by demoralization among his young conservative staff members at the Justice Department. They have seen first Bork, their teacher and hero, and now Ginsburg, a personal friend, laid low.

“After what happened, it could be very difficult to pick another solid conservative,” said a Justice Department official and strong supporter of the Bork and Ginsburg selections.

In the selection process so far, the Administration has allowed interest groups on the right to veto prospective candidates. Now, a Justice Department official said, the question will be “how seriously” those objections will be taken.

In particular, the official said, it was too soon to say whether Kennedy, the Sacramento jurist, could overcome the strong objections to his candidacy that Helms and other conservative senators raised just as it appeared that he, not Ginsburg, would be nominated.

“People can be convinced,” a White House official said. “When the President nominates one of these guys,” he predicted, conservatives will support him. Conservatives opposed Kennedy primarily because of an opinion he wrote in a case involving homosexuals and the Navy. Kennedy upheld the Navy’s right to expel sailors for homosexual conduct, but his opinion contained passages that, conservatives said, appeared to endorse past high court decisions upholding a constitutional right to privacy.

Bork Ruled in Similar Case

By contrast, Bork had used a similar case involving the Navy and homosexuality as a vehicle for a criticism of decisions based on a right to privacy. Many conservative activists oppose the privacy cases because they were the basis for the high court’s decision legalizing abortion.

Wilkins faces an objection to his stand on the death penalty. Meese and other conservatives in the Administration are still angry that Wilkins, as the head of a commission charged with writing new federal rules on criminal sentences, stopped their move to use the commission’s new rules as a way of reintroducing the death penalty for federal crimes.

Questions have also been raised about Wilkins’ intellectual qualifications. A Justice Department official, asked whether Wilkins was being taken seriously as a candidate, said: “I don’t see how he could be, after sending up intellectuals like Bork and Ginsburg.”

Among other candidates who were on the original list of 13, three female federal judges--Pamela Rymer and Cynthia Holcombe Hall, both of Los Angeles, and Cornelia Kennedy of Detroit--drew opposition from anti-abortion groups. Judge Roger J. Miner of Albany, N. Y., drew opposition from those groups and from right-to-work organizations.

Republicans also objected to federal appeals judge Patrick J. Higginbotham of Dallas, in part because he had been endorsed by several of the Southern Democratic senators who opposed Bork.

Democrats Voice Objections

Democrats objected strongly to two federal judges on the list--J. Clifford Wallace of San Diego and Pasco M. Bowman II of Kansas City. Wallace has made statements that suggest he disapproves of a strict separation of church and state. Bowman is a protege of Helms and has drawn fire from labor groups because of a labor-law institute he established while law school dean at Wake Forest University in Winston-Salem, N. C., which they accuse of having been a front for anti-union groups.

The final candidate on the list, appeals judge Edith H. Jones of Houston, drew few objections, but at age 38, she has even less experience than Ginsburg had.