Judge Kennedy Picked as 3rd Court Candidate : ‘All of Us a Bit Wiser,’ Reagan Says

President Reagan, in his third attempt to fill the vacant Supreme Court seat, said Wednesday that he will nominate federal appeals Judge Anthony M. Kennedy of Sacramento, whom he described as representing “the best traditions of America’s judiciary.”

In a low-key ceremony, Reagan appeared conciliatory after four months of confrontation with the Senate over his previous two choices for the high court. “The experience of the past several months has made all of us a bit wiser,” Reagan conceded.

With his wife, daughter and two sons looking on, Kennedy, 51, shrugged off a question about whether he was upset that he was the third candidate for the seat.

Candidate ‘Delighted’

“I’m delighted with this nomination,” he said.

He had been interviewed for the job exactly two weeks earlier, but Reagan instead chose Douglas H. Ginsburg, whose nomination was derailed after he admitted to having smoked marijuana.

Kennedy, in response to a reporter’s question, said he had been asked before being offered the nomination whether he had ever smoked marijuana. “The answer,” he said, “was no, firmly no.”

White House spokesman Marlin Fitzwater also drew a distinction between Kennedy and Robert H. Bork, Reagan’s first nominee, whom the Senate defeated by a vote of 58 to 42 after liberals attacked his aggressively conservative record.

Fitzwater said Kennedy “doesn’t have the provocative writings Judge Bork has, but his conservative credentials are pure.”

Kennedy, who has served since 1975 on the San Francisco-based U.S. 9th Circuit Court of Appeals, quickly won praise from both moderate and conservative Republi cans, while most Democrats reserved judgment.

“I can’t see any good reason for anyone opposing this, from Jesse Helms to Teddy Kennedy,” said Sen. Pete Wilson (R-Calif.). Helms, a highly conservative North Carolina Republican, once threatened to filibuster if Reagan nominated Judge Kennedy, and Sen. Kennedy led the liberal fight against Bork.

Sen. Arlen Specter (R-Pa.), who provided a key vote in opposing Bork in the Judiciary Committee, said: “By all preliminary indications, he looks good, very good.”

No senators expressed immediate opposition to Kennedy. But a number echoed Sen. Alan Cranston (D-Calif.), who said: “I intend to reserve judgment until the facts are in.”

Exhaustive FBI Check

The Administration hopes Reagan can formally nominate Kennedy by the end of November, after an exhaustive FBI check of his background. The Senate Judiciary Committee’s chairman, Joseph R. Biden Jr. (D-Del.), has said the committee will probably begin its hearings on Kennedy’s nomination in January.

A prime focus of those hearings is expected to be Kennedy’s eight years of lobbying in Sacramento for Schenley Industries Inc., the giant liquor producer.

At the time of Kennedy’s ties to the firm--severed when he was appointed to the appeals court with the support of then-Gov. Reagan--Schenley was paying hundreds of thousands of dollars in illegal kickbacks and inducements to liquor distributors and restaurant chains in California and New York, according to records in both states. The records show no evidence that Kennedy played any role in the improper payments, however.

Fitzwater said Kennedy’s connections with Schenley were investigated both when Kennedy was named to the appeals court and again as he has been considered for the Supreme Court. “We found that his actions were totally appropriate,” Fitzwater said.

‘Thoroughly Examined’

Reagan, who announced his choice of Kennedy on live television from the White House press briefing room, said: “Judge Kennedy’s record and qualifications have been thoroughly examined.”

Fitzwater said Reagan had asked Kennedy specifically whether anything in his background would embarrass him during his confirmation hearings--and that Kennedy had said no.

The White House, in an effort to avoid the deep embarrassment caused by Reagan’s hasty choice of Ginsburg, subjected Kennedy to 10 hours of interviews with the FBI Monday and Tuesday. And Atty. Gen. Edwin Meese III, White House Chief of Staff Howard H. Baker Jr. and their senior aides spent three hours with Kennedy Sunday in what Fitzwater described as a “no-holds-barred session” focusing on matters of personal integrity.

In searching for a new Supreme Court justice, Reagan has sought a nominee who would bolster the conservative majority he has tried to build with his earlier nominations of Justices Sandra Day O’Connor and Antonin Scalia. His goal is a Supreme Court that will reflect into the next century the conservative ideology he brought to the executive branch in 1981.

But after the Senate defeated Bork and Ginsburg withdrew, the President also had to find a nominee acceptable to enough senators to win confirmation.

A Strategic Retreat

His selection of Kennedy represented a strategic retreat from the hard-line conservatives he had found in Bork and Ginsburg. Some conservatives in the Justice Department were said by a Republican lobbyist with close ties to the White House to be doing their “dead-level best” to derail Kennedy’s selection as recently as Tuesday.

Still, Reagan called Kennedy “a true conservative, one who believes that our constitutional system is one of enumerated powers, that it is we the people who have granted certain rights to the government, not the other way around.”

At the same time, the President said, “he’s popular with colleagues of all political persuasions. And . . . he seems to be popular with many senators of varying political persuasions as well.”

Kennedy, a graduate of Stanford and Harvard Law School, was viewed during his 12 years on the appeals court as a follower rather than as a judge who aggressively tried to craft majorities to lead the court in any particular philosophical direction.

Conservative Decisions

He wrote a number of conservative decisions, including one upholding the death sentence and another supporting the constitutionality of Navy regulations that provided for the discharge of sailors who engaged in homosexual activities.

In addition, in a dissent later adopted on appeal by the Supreme Court, he chipped away at the rule that bars evidence from criminal trials when police obtain it illegally. Reagan and Meese have frequently singled out the so-called exclusionary rule as a bar to effective law enforcement. But other Kennedy decisions make him difficult to categorize. He wrote the unanimous opinion, urged by a liberal organization, that the legislative veto--in which either house of Congress can overturn an executive branch regulation--is unconstitutional. That ruling, later affirmed by the Supreme Court, was supported by the Reagan Administration.

‘On the Right Side’

A fellow appeals court judge, Alex Kozinski, said he has never heard Kennedy express an opinion on abortion. But a leading conservative activist said Monday, when Kennedy’s nomination appeared certain, that “right-to-life groups have been assured” that the judge is “on the right side” of the issue.

Aides to Democratic senators said that determining whether Kennedy had made any private assurances would be a focus of their investigations.

In his bid for confirmation, Kennedy spoke by telephone with Helms almost immediately after Reagan announced his plan to nominate him. Helms said: “I was encouraged by his comments.”

Sen. Orrin G. Hatch (R-Utah), a member of the Senate Judiciary Committee, said he doubts conservatives will oppose Kennedy.

Among liberals, Sen. Patrick J. Leahy (D-Vt.), another member of the Judiciary Committee, said he does not view Kennedy as a conservative ideologue. He said he will study the judge’s record on law enforcement and freedom of speech.

Lobbyist’s Assessment

Among the lobbyists who played a role in Bork’s defeat, Arthur J. Kropp, president of the liberal People for the American Way, said: “At first glance, Kennedy appears to be no Bork.”

Kennedy plans to visit key senators today. The White House, in an effort to display bipartisan support, brought Sen. Wilson and Rep. Robert T. Matsui (D-Sacramento), the judge’s congressman, to the White House press room for Reagan’s announcement.

Reagan’s remarks stressed Kennedy’s wide legal experience involving tax, real estate and international law and litigation, as well as his participation in more than 1,400 appeals court decisions and his role as a crime fighter.

“Judge Kennedy has participated in hundreds of criminal law decisions during his tenure on the 9th Circuit Court of Appeals,” Reagan said. “In that time, he has earned a reputation as a courageous, tough but fair jurist. He’s played a major role in keeping our cities and neighborhoods safe from crime.”

And the President, asked about his vow a month ago that he would give the Senate a nominee “they’ll object to just as much as” Bork, told reporters: “Sometimes you make a facetious remark, and somebody takes it seriously, and you wish you had never said it, and that’s one for me.”

Staff writers Robert L. Jackson, David Lauter and Karen Tumulty contributed to this story.