Experts Think Kennedy May Be New Swing Vote : Judge Has No Record of Controversy, Is Called ‘Almost Prissy’

Anthony M. Kennedy--described as a “straight arrow” and “almost prissy” by other members of the U.S. 9th Circuit Court of Appeals--astonished a group of Sacramento law students recently by giving a lecture in a powdered wig and three-cornered hat.

Kennedy, who teaches constitutional law at McGeorge School of Law, was observing the bicentennial of the U.S. Constitution by pretending to be James Madison, one of the authors of the Federalist Papers and one of the probable Supreme Court nominee’s personal heroes.

Holds Students’ Attention

“He kept it up for the entire class. He was pretending he was Madison at the Constitutional Convention, and it was like he’d read the daily record,” one student said. “You could have heard a pin drop.”

That incident in September stands in dramatic contrast to the portrait of a cautious and less-than-colorful federal judge drawn by Kennedy’s colleagues on the 9th Circuit as well as others in reaction to the announcement of his selection.

“He’s not a jokester,” said Chief Circuit Judge James R. Browning. “I’ve certainly never seen him do anything like that. I’ve never heard of such a thing before. He has a love for the law. You have to put it in the context of trying to reach out to his students.”

Amid wide praise from both liberals and conservatives on the nation’s largest federal appeals court, there was a consensus that Kennedy’s 12 years on the federal bench have been marked by a lack of controversy extending from his work as a judge to his private life.

“I say with confidence that it is the unanimous view of the judges on this court that, if confirmed, Judge Kennedy will be an outstanding justice,” said Browning, a Democrat appointed to the 9th Circuit in 1961. “On this court, he is certainly not controversial on either end of the spectrum. We know from personal experience that he is an objective, thoughtful and balanced judge.”

In contrast to several 9th Circuit conservatives, including some briefly considered for the nomination, Kennedy’s legal opinions since his appointment by President Gerald R. Ford in 1975 have avoided sharp ideological clashes with the court’s liberal wing, which constituted a majority until a flood of appointments to the 28-judge court by President Reagan in the last two years.

Doesn’t ‘Pick a Fight’

“He is a very cautious person, almost prissy,” said one liberal Democratic judge appointed by President Jimmy Carter. “His opinions are very cautiously written. He’s not in any way abrasive. He’s a good strong, solid conservative, but he doesn’t go out of his way to pick a fight. He doesn’t go anywhere he doesn’t have to go in writing an opinion.”

Although some Democrats on the 9th Circuit withheld judgment on whether Kennedy can survive the confirmation process, saying it has become too unpredictable in the wake of the unsuccessful Robert H. Bork and Douglas H. Ginsburg nominations, several leading conservative judges predicted that the Senate would find little in Kennedy’s record that could cause him serious trouble.

“It’s fair to call him a moderate conservative. Whereas he’s a bit to the left of me, that’s probably to his advantage,” said Senior Judge Joseph T. Sneed, viewed by some as the 9th Circuit’s leading conservative spokesman.

“I think he’s almost ideal for the job,” added Sneed, a 1973 appointee of President Richard M. Nixon. “He’s the right age. Right background. Right attitude. He’s a good judge and his personal life is impeccable.”

First Senate Page

Kennedy, 51, was born in Sacramento and was the California Senate’s first page at the age of 10. His father, Anthony J. Kennedy, was a prominent attorney and lobbyist who worked as a sole practitioner. His mother, Gladys M. (Sis) Kennedy, was viewed as a “grande dame” in Sacramento society during President Reagan’s tenure as California governor from 1967 to 1974. Kennedy’s father died in 1963, his mother in 1981.

Kennedy was graduated from Stanford University in 1958 and Harvard Law School in 1961, studied for a year at the London School of Economics and taught a seminar there on U.S. government. He first practiced law in San Francisco with the firm of Thelen, Marrin, Johnson & Bridges, now a 282-lawyer firm. However, he returned to Sacramento when his father died in November, 1963, intending to settle family business affairs and then return to San Francisco.

“We were associates together for two years,” said Donald D. Roberts, former managing partner of Thelen, Marrin, Johnson & Bridges. “He was very bright, very hard working. No bad habits. Disgustingly so. If he knew any swear words, he never used them in my presence.

“He took a leave of absence when his father died, intending to return,” Roberts added. “The story I heard was that his father’s clients were so happy with him they persuaded him to stay. He built his father’s practice into one of the finer firms in Sacramento--Evans, Jackson & Kennedy, with a dozen lawyers or so.”

Lobbyist for Opticians

In Sacramento, Kennedy was a lobbyist for the California Assn. of Dispensing Opticians as early as 1964 and also engaged in lobbying activities for a liquor company, Schenley Industries Inc., until his appointment to the 9th Circuit in 1975. State records say that his lobbying clients included Capitol Records and disclose that Kennedy estimated that 10% of his time was spent as a lobbyist and the remainder as a lawyer.

“I would not classify him as a lobbyist; I would classify him as a lawyer,” said James D. Garibaldi, a Sacramento lobbyist for more than 40 years. “I never knew of him working on any liquor bill as a lobbyist. As far as I knew, he did legal work for them (Schenley).”

Two years after taking over his father’s law practice, Kennedy, whose wife, Mary, is an elementary school teacher, began teaching a class in constitutional law at McGeorge School of Law in Sacramento. He continued his teaching after his appointment to the federal bench.

“He’s regarded as a very good teacher,” said Gerald F. Uelmen, the liberal dean of Santa Clara University School of Law and a leading expert on the 9th Circuit. “The people up at McGeorge just love him. I like the idea of somebody who has kept his hand in legal education and actually maintained a classroom presence while he’s been on the court.”

Kennedy’s first contact with officials of a Reagan administration occurred in 1967, when Paul Haerle, who had worked with Kennedy when he was a San Francisco lawyer, was named appointments secretary to then-Gov. Reagan. Haerle recalls Kennedy as a “strong Republican” but one who was inactive in politics.

Introduced to Meese

Haerle introduced Kennedy to Edwin Meese III (then state clemency secretary, now U.S. attorney general) and others in the Reagan Administration and recalls that Meese later enlisted Kennedy to help draft Proposition 1, an unsuccessful 1973 initiative to curb state spending.

“I don’t think he had an intimate relationship with the Reagan Administration, but we were all fairly close up here,” Haerle said. “We had families of a certain age and kids of a certain age. He was very friendly, but not a hail-fellow, go-to-Posey’s-and-have-a-few-belts kind of guy.” Posey’s is a Sacramento restaurant favored by politicians.

On the 9th Circuit, Kennedy was involved at an administrative level in opening the court’s new Southern California headquarters in Pasadena last year and has been a leader in campaigning for a judicial research center nearby.

If confirmed by the Senate, Kennedy would be the first 9th Circuit judge to sit on the high court since 1925 and only the third in history to be appointed from the nation’s largest circuit, which covers California and eight other Western states and U.S. territories stretching to Guam and American Samoa.

Favors Splitting Circuit

In a 1984 interview with The Times, Kennedy, one of the few 9th Circuit judges who has publicly advocated splitting the circuit into smaller units, spoke with his usual mix of caution and mild humor about his work as a judge and problems facing the courts.

“We’re essentially a negative body,” he said. “The functions of an appellate court are two. The first is a corrective function and the second, and more important, more creative, is the law declaration. I am somewhat concerned the function is becoming somewhat blurred.

“When I first got on the court, I thought this is going to be very exciting,” Kennedy added. “But I find that, in a great number of cases, I’m thinking of future cases. It seems to me we have to write stuff pretty quick. Just the press of business makes it difficult to assess our own role.”

In addition to his work on the court and as a law professor, Kennedy, who has three children, is described by friends as “a very active Catholic.” The judge, who is clearly comfortable with his life style in Sacramento, told friends and colleagues that he was relieved when he was first passed over for the nomination in October.

‘Glad to Be Coming Home’

“I think everybody on the court was disappointed,” Judge Browning recalled. “Tony called me and he told me: ‘Jim, I didn’t make it.’ I expressed dismay. He said: ‘Frankly, I’m glad to be coming home.’ ”

Officials at McGeorge School of Law said Wednesday that they have not decided what to do about replacing Kennedy. Professors and students joined in praising him and predicting no problems in the Senate confirmation process.

“I think he’s a very intelligent guy,” said student Steve Hanson. “You can’t really tell from his classroom discussion what his politics on the issues are.

“He’s an honorable man. He’s never smoked pot in class once,” Hanson added.

Staff writers Richard C. Paddock and Jerry Gillam contributed to this story.