Experts Think Kennedy May Be New Swing Vote : Californian Seen as Deciding Each Case on Its Merits

In 12 years as a federal appeals court judge, Anthony M. Kennedy has developed a reputation as a moderate conservative very much like the man whose Supreme Court seat he could fill--Justice Lewis F. Powell Jr.

Powell frequently served as a swing vote on an evenly divided court, and President Reagan had hoped to replace him with a reliable conservative who would tilt the court to the right on such issues as abortion, civil rights and religion.

Conservative Instincts

But legal experts said Wednesday that Kennedy may be another unpredictable swing vote whose instincts are conservative but who is unlikely to be a faithful ally of the right.

“Kennedy decides each case on its merits,” said Santa Clara University law dean Gerald F. Uelmen. “He doesn’t bring an agenda to the bench. He has the reputation of being a judge who is reliable, who doesn’t venture very far and who has a solid respect for precedent.”

Lawyers find Kennedy to be more of a judicial technician than a conservative ideologue, one who usually seeks to balance competing principles.

“With Kennedy, you always think you have a chance,” said Peter Davis, an Oakland attorney and president of the California Academy of Appellate Lawyers. “He listens to the arguments and he can be persuaded. He doesn’t have a fixed preconception or a philosophy that will dictate the result in the case, and you can’t say that about a lot of judges.”

However, liberals and civil rights activists were not ready to pronounce Kennedy acceptable.

“After the first two they sent up, there is a temptation to rush to judgment in favor of this one,” American University law professor Herman Schwartz said. “But you have to wonder: Why is Jesse Helms mollified? What does he know that we don’t?” Helms is the conservative Republican senator from North Carolina who had opposed Kennedy two weeks ago.

Several Rulings ‘Troubling’

Veteran civil rights lawyer William Taylor said that several of Kennedy’s rulings “seem rather troubling” but that they do not show a “pattern of hostility to civil rights claims.”

At the other end of the spectrum, some conservatives declared themselves somewhat disappointed with Kennedy’s selection.

“I think he will largely echo Powell,” said Bruce Fein, a legal scholar at the Heritage Foundation. “Kennedy seems to be a judge who is satisfied with the conventional wisdom.”

Lawyers who have examined Kennedy’s rulings as a judge since 1975 on the San Francisco-based 9th Circuit Court of Appeals believe that he can be counted on to uphold criminal convictions except in egregious cases of police misconduct.

His record indicates also that, although he approaches new civil rights claims with a skeptical eye, he demonstrates a clear willingness to follow established law in favor of existing civil rights and civil liberties.

On abortion, lawyers say that they have heard conflicting rumors about his views but that they can find nothing in his record to suggest whether or not he favors a legal right to abortion.

Kennedy’s key opinions include:

--In 1980, in upholding the Navy’s discharge of three servicemen for homosexuality, he indicated that he was not strongly in favor of such a policy. In a lengthy opinion, he held that “private consensual homosexual behavior” may be off-limits to government interference but that the military has special authority to set strict rules for its personnel.

Last year, the Supreme Court went even further than Kennedy’s court by upholding a Georgia law imposing criminal penalties for homosexual conduct. Powell cast the key vote for the majority.

--In 1983, an appeals court threw out the conviction of a cocaine seller in Los Angeles after it concluded that the search warrant issued by a magistrate was improperly vague. Kennedy dissented, saying that the evidence should be used as long the police operated in “good faith.” The next year, the Supreme Court sided with Kennedy and created a new “good-faith exception” to the rule excluding tainted evidence from court.

--In 1980, Kennedy strongly dissented when the full appeals court upheld the conviction of a Seattle woman on charges of possessing heroin. Police officers had obtained the evidence from her 5-year-old son after giving him a $5 bribe. “Indifference to personal liberty is but the precursor of the state’s hostility to it,” Kennedy wrote.

--In 1985, in the first appeals court ruling on the “comparable worth” issue, Kennedy came down against guaranteeing equal pay for work deemed to be of equal value.

A district court had found that the state of Washington had discriminated against its female employees because jobs typically held by women paid 20% less than jobs usually held by men. But Kennedy said that this reflected the workings of the job market and held that the state had no responsibility to interfere.

Dismissed Rights Suit

--In 1976, Kennedy dismissed a civil rights suit against Los Angeles realtors who were steering black couples to neighborhoods occupied only by blacks. He found that those who brought the suit were not actual victims of discrimination.

The Supreme Court later disagreed. In an opinion by Powell, it said that the Fair Housing Act often must be enforced by “third parties.”

--In 1978, Kennedy threw out a district judge’s order seeking to inspect a television movie for inaccuracies before it was aired. “It is a fundamental principle of the First Amendment,” Kennedy wrote, “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 work as a lobbyist questioned. Page 22.