Kennedy: A Conservative Satisfied With Status Quo

Supreme Court nominee Anthony M. Kennedy, who goes before the Senate Judiciary Committee for his confirmation review starting Monday, shows himself in his court opinions and speeches to be a conservative who is reasonably satisfied with the legal status quo.

Like Atty. Gen. Edwin Meese III and Judge Robert H. Bork, whose nomination to the court was killed by the Senate, Kennedy firmly believes that Americans’ rights under the Constitution are limited to the “original intent” of the document’s framers.

As a justice, Kennedy seems likely to frown on claims that the right to “liberty” protects private homosexual conduct, that the death penalty represents unconstitutionally “cruel and unusual punishment” and that drug testing violates an employee’s “right to privacy.”

But unlike Meese and Bork, Kennedy shows no apparent interest in reversing key liberal rulings from the past. Where Bork heaped scorn on the Warren Court of the 1950s and ‘60s, Kennedy praises Warren-era rulings as furthering the cause of justice.

Of the 1954 Brown vs. Board of Education ruling that struck down school segregation, he told a legal conference in August: “The only thing wrong with Brown was that it wasn’t decided 80 years earlier.”

That balance between Kennedy’s conservative views and his respect for other high courts’ more liberal precedents underscores why the California judge is expected to avoid the fierce liberal cross fire that helped doom Bork’s bid, and to receive Senate confirmation.

But it also suggests that his impact on the court might be less dramatic than the Administration had hoped when it first set out to fill the seat vacated by moderate Lewis F. Powell Jr. Though Kennedy clearly would give the Administration its long-sought fifth conservative vote on the now evenly divided panel, he seems unlikely to provide forceful leadership to push moderate justices in a sharply conservative direction.

Kennedy’s 400 opinions in his 12 years on the U.S. 9th Circuit Court of Appeals and texts of his speeches assembled by the Judiciary Committee reflect an approach that is consistently cautious and restrained, never extreme or provocative. The decisions show no inclination to set far-reaching precedents, but rather are often made on narrow grounds and with scant constitutional philosophizing.

In contrast to the more deeply ideological Bork, who once said that being a Supreme Court justice would be “an intellectual feast,” Kennedy described the key qualities of a judge in his Senate confirmation questionnaire as “compassion, warmth, sensitivity and unyielding insistence on justice.”

A thoughtful student of the Constitution, Kennedy has dwelt in his speeches on the theme that a judge’s role is quite limited.

It is a mistake, Kennedy told an audience at Stanford University last year, to “equate a just regime with a constitutional regime.” A judge’s job is to faithfully follow the language and clear intent of the Constitution and this is “not a guarantee of every right that should inhere in an ideal system,” he said.

Kennedy, therefore, seems likely to spurn appeals to broadly interpret constitutional protection for circumstances not envisioned by the Founding Fathers, or to infer rights not spelled out in the Constitution.

For example, in the Stanford speech, he praised the Supreme Court’s 1986 ruling that upheld Georgia’s anti-sodomy law, even though the conclusion may “violate some people’s views of rights in a just society.” The Constitution gives Georgia’s lawmakers “the right to be wrong in matters not specifically controlled by the Constitution,” he said.

‘Positive Entitlements’

In several speeches, Kennedy has been critical of some judges’ views that the Constitution by implication creates “positive entitlements,” such as a right to decent housing.

“The Constitution cannot be thrown about as a panacea for every social ill,” he said in a 1984 speech in Sacramento. “My own judicial philosophy has been described by others as conservative and therefore unlikely to accept doctrines which substantially expand the role of the courts,” he continued, adding that the description “is probably apt.”

Kennedy’s view contrasts sharply with that of the high court’s senior liberal member, Justice William J. Brennan Jr. In a 1985 speech denouncing the “original intent” doctrine, Brennan said the Constitution’s Bill of Rights embodies a “vision of human dignity” that must be protected by the courts.

Where Brennan believes the courts must help defend unpopular minorities such as homosexuals, Kennedy says the courts should defer to the political branches of government unless the Constitution mandates otherwise.

In his speeches and rulings, Kennedy has not addressed the right to abortion, the most disputed issue before the high court and one decried by conservative lawyers as a flagrant example of creative judicial interpretation.

Warren Court’s Conclusion

In 1965, the court under Chief Justice Earl Warren concluded that the Bill of Rights, which cites a right to protection against unreasonable search and seizure, implies a “right to privacy” in personal matters when taken broadly. In the court’s 1973 Roe vs. Wade decision, the justices extended this right to forbid laws banning abortion.

But conservatives complain that the authors of the Bill of Rights and other constitutional amendments had no thought that their words would cover abortion. Kennedy, who cited the 1973 abortion ruling without comment in a 1980 opinion, has voiced a general skepticism about whether the Constitution creates the right to privacy.

Kennedy’s strict view of individual rights has already caused concern by some civil rights and social activist groups, who say his perception of what constitutes illegal discrimination is too narrow.

The National Organization for Women last month denounced him as a “sexist” and called on the Judiciary Committee to reject him. The group cited, in part, a 1985 ruling in which he threw out a lawsuit filed by female state employees in Washington state who contended that they were the victims of pay discrimination and demanded raises based on a novel concept of “comparable worth” for male- and female-dominated jobs. Kennedy ruled that they had not proved discrimination and that their salaries were due to the “competitive market.”

William Taylor, a veteran Washington civil rights lawyer, says several of Kennedy’s opinions on racial discrimination cases are likewise “troubling.” He added: “What worries me is that he doesn’t appear to understand the nature of discrimination or what is required to remedy it.”

As an example, Taylor cited a 1976 Kennedy ruling dismissing a suit that accused a Los Angeles real estate firm of illegally “steering” black home buyers away from white neighborhoods. Kennedy concluded the evidence was flawed because the plaintiffs were community volunteers deliberately testing the firm, not couples who actually wanted to buy a house. The Supreme Court later overturned this conclusion, ruling in a 1979 opinion written by Powell that such “third-party suits” were necessary to detect housing discrimination.

‘A Sheltered Existence’

Powell, a Virginia school board official before he became a justice, “had mixed it up in public” on discrimination issues, Taylor said. “He had been exposed to real problems in civil rights,” Taylor said. “Kennedy seems to have led a more sheltered existence.”

In a 1968 interview, Kennedy said the court should permit membership discrimination by private clubs, based on the right of free association, an issue that will be considered again by the justices this spring. (Kennedy recently resigned longstanding memberships in two clubs that discriminate, saying such practices are unacceptable, but he gave no firm indication of how he would rule on the pending issue.)

Still, legal experts also say Kennedy’s record is not uniformly or stridently opposed to civil rights claims, and civil rights groups have not declared their opposition to him.

They note that although Kennedy seems disinclined to expand social protections, he also seems reluctant to shrink them by attacking precedents that did.

Backs ‘One Man, One Vote’

He has endorsed the Warren Court’s ruling that established the “one-man, one-vote” principle in drawing election boundaries, which aided minorities, and its ruling that all poor defendants have a right to a lawyer. Bork had sharply criticized both decisions.

In praising the landmark 1954 high court ruling on school desegregation, Kennedy said it followed from the 14th Amendment’s goal of legal equality for blacks.

Kennedy also seems unlikely to join the Reagan Administration’s attacks on several controversial, high-profile laws, as part of its conservative agenda. The measures include the War Powers Resolution, which grants Congress the right to limit the President’s deployment of troops in situations where hostilities are imminent, and the ethics law that provides for court-appointed independent counsels to investigate wrongdoing among high government officials.

The Administration has contended that both improperly intrude on the constitutional authority of the President.

A Separation of Powers

But Kennedy, in a Sacramento speech in September, questioned the wisdom of a “very strict” insistence on a separation of powers, and instead argued that the American charter of government holds the notion of “checks and balances” equally important. Congressional backers of the two laws have argued that they provide essential checks against executive-branch abuses.

In weighing the rights and powers of individuals and jurisdictions, Kennedy holds particularly dear the protection of states’ rights.

In his speeches, Kennedy repeatedly argues that the courts must protect states from federal intrusions. Congress and the courts are in danger of making “relics” of the states, he said in an October speech.

Kennedy does not mention specific issues, but his view is significant because the high court’s most contentious cases--varying from abortion and “creationism” in school classrooms to speed limits on the highways--are often battles between state and federal power.