His Beliefs Wouldn’t Affect Abortion Cases--Kennedy
Supreme Court nominee Anthony M. Kennedy, declaring that a judge’s personal views should not influence his judicial decisions, pledged Monday that his own beliefs about abortion would not affect his consideration of cases on the issue if his nomination is confirmed.
The pledge, issued on his first day of testimony before the Senate Judiciary Committee, appeared to allay the concerns of some senators that Kennedy, a devout Catholic, might apply the church’s anti-abortion teachings to become a decisive swing vote in a divided court. Earlier Monday, the high court split 4 to 4 in a crucial abortion case.
With his careful but confident answers to questions about abortion and other issues, Kennedy seemed headed for all-but-certain confirmation by early next year, a step that would restore the Supreme Court to its full nine-member complement and provide the Administration with a success after its failed nominations of Robert H. Bork and Douglas H. Ginsburg.
“Only you could stop eventual confirmation, and I rather suspect you won’t,” Sen. Patrick J. Leahy (D-Vt.) said as the hearings opened. The committee questioning is expected to continue through Thursday.
On the issue of abortion, committee Chairman Sen. Joseph R. Biden Jr. (D-Del.) opened by telling Kennedy that, though he would be “only one of nine,” the court’s split decision in the abortion case “indicates why your nomination is so critical.”
Helms Meeting Reported
Earlier published reports had suggested that Kennedy, in a private meeting with Sen. Jesse Helms (R-N.C.), had assured the senator that he understood and admired his opposition to abortion because “I’m a practicing Catholic.”
But in response to Biden’s questions, Kennedy strongly denied that he had given Helms any assurances about how he would rule on abortion. The abortion issue and his own Catholicism came up in a “wide-ranging” conversation he had with the senator and “were not linked,” Kennedy told the subcommittee.
Kennedy, without disclosing his personal views on abortion, further testified: “It would be highly improper for a judge to allow his or her own personal or religious views to enter into a decision respecting a constitutional matter.
”. . . A man’s or a woman’s relation to his or her God and the fact that he or she may think they’re held accountable to a higher power may be important evidence of a person’s character or temperament,” Kennedy testified. “It is irrelevant to his or her judicial authority.”
Abortion Question Pursued
Sen. Howell Heflin (D-Ala.) later pursued the abortion question further, saying that he thought the American people would want to hear how Kennedy would approach the Roe vs. Wade high court decision that struck down state laws against abortion.
” . . . The role of the judge is to approach the subject with an open mind, to listen to the counsel and to look at the facts of the particular case, to see what the injury is . . . " Kennedy said, “and then to listen to his or her colleagues and then to research the law.”
Kennedy summed up the two sides of the argument in the landmark 1973 decision without giving a clue to how he might vote. He took note of the doctrine of stare decisis, which calls for not overturning rulings so that the law remains settled and clear. But then he cited the argument that the doctrine should not apply as rigidly to constitutional cases as it does to others because “there is no other overruling body in the constitutional area.”
Kennedy also deflected attempts to discover whether he believes the Constitution affords an implied right to privacy and whether the Ninth Amendment provides a justification for an expansion of certain rights.
Beliefs, Rulings Outlined
On those issues, Kennedy merely outlined what “most Americans--and most judges--believe” and how the Supreme Court appeared to have ruled.
“If I had a concluded position on a particular case or a particular issue, perhaps I might be obligated to disclose that to you,” he said later. “I do not have any such views with reference to privacy or abortion or the other subjects . . . “
In his answers to a full range of questions, Kennedy was not nearly as expansive as Bork had been but he was considerably more forthcoming than Justice Antonin Scalia, who refused outright to answer many of the committee’s questions in his confirmation hearings in the summer of 1986. With that strategy, Kennedy appeared to be keeping his own counsel on an issue that had sharply divided the Senate committee.
In their opening statements, Democrats, hoping to establish a precedent for future judicial reviews, called on Kennedy to be candid. But most Republicans, concerned that Bork’s own answers had helped to do him in, urged the nominee to be cautious and to avoid commenting on cases he might later face as a justice.
“Don’t be bullied or badgered into thinking you’ve got to answer any questions that we ask up here,” Sen. Orrin G. Hatch (R-Utah) said.
Response on Club Bias
But Kennedy responded at length when questioned by Sen. Edward M. Kennedy (D-Mass.) about his longtime membership in private clubs whose membership policies discriminated against women and minorities.
Asked why he did not resign from two of those clubs--the Olympic Club in San Francisco and the Del Paso Country Club in Sacramento--until October, Judge Kennedy appeared to confess to “insensitivity and indifference.”
“Discrimination arises from several sources,” Kennedy said. “Sometimes it’s active hostility and sometimes it’s just insensitivity and indifference. Over the years, I have tried to become more sensitive to the establishment of visible barriers to the advancement of women and minorities in society. This was an issue in which I was continuing to educate myself.”
Kennedy testified that he had sought to persuade the Olympic Club to change its rules before he resigned and that he had resigned in 1980 from another club, the all-male Sutter Club in Sacramento, because he was known there as a federal judge and “I thought it was inappropriate that I belong.” But asked why he did not resign from the Olympic Club at the same time, he said: “Probably because nobody knew me.”
‘Hurt Can Be There’
Kennedy denied that any of the clubs practiced “invidious discrimination,” which is proscribed by the 1984 Code of Judicial Conduct of the American Bar Assn. But when pressed by Sen. Kennedy, the judge acknowledged that “the injury and the hurt and the personal hurt can be there regardless of the motive.”
In discussing criminal law, Kennedy hewed close to the hard line taken by the Reagan Administration. He noted that the American system calls for police “policing the police” to protect suspects’ rights, which he said “illustrates that constitutional rights are not cheap. We pay a price for constitutional rights.” But he said the enforcement of rules on police conduct should be pragmatic and workable.
Referring to his studies at Harvard Law School, Kennedy said he “never heard the word ‘victim.’ This is the wrong focus.” Kennedy pointed out that crime victims often miss work to appear at criminal proceedings and find themselves sitting in a court hallway with the suspect staring at them--an experience that he said can be as bad as the crime itself.
Death Penalty View
Kennedy said he had not committed himself on the question of whether the death penalty is constitutional, but added: “I have committed that if it is found to be constitutional it should be enforced.”
Kennedy’s reception by Democrats on the committee who had clashed frequently with Bork was friendly by contrast and, sometimes, mixed with humor.
Kennedy was introduced to the committee not only by a California Republican, Sen. Pete Wilson, but also by two hometown Democrats, Rep. Vic Fazio (D-Sacramento) and Rep. Robert T. Matsui (D-Sacramento).
Later, Sen. Kennedy, who denounced Bork’s selection hours after the nomination was announced, told Judge Kennedy that in Gaelic their last name means “helmet,” but noted that he was not wearing one.
“I’ll put on a helmet when you do, senator,” the judge responded.