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Kennedy Takes Middle Stance on Criminal Law : Criticizes ‘Miranda’ Ruling While Stopping Short of Reagan Administration’s Attack on Decision

Times Staff Writers

Supreme Court nominee Anthony M. Kennedy Tuesday criticized the landmark 1966 decision establishing a “sweeping” rule that protects criminal suspects, saying that the “Miranda” rule does not appear to follow directly “from the words of the Constitution.”

But Kennedy stopped far short of the position taken by the Reagan Administration, which has decried the Miranda decision as “wrong” and launched a campaign to persuade the Supreme Court to relax restrictions on how law officers can obtain confessions.

But while the decision “went to the verge of the law,” Kennedy said, “since it’s established, it is entitled to great respect.”

Concern for Broad Exceptions

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Kennedy similarly voiced both support and concern about the high court’s exclusionary rule, which bars use of improperly gathered evidence in criminal cases. While the system ought to make some allowances when law officers act in good faith, Kennedy said, a broad “good faith exception might swallow up” the rule and reward police misconduct in searches.

Kennedy’s position on the controversial issues of criminal law--stated on his second and last day of testimony before the Senate committee reviewing his nomination--would appear to put him in the mainstream of the current court. The court has been trimming back on the two rules but has shown no sign of overturning them.

His approach was characteristic of his low-key testimony before the Senate Judiciary Committee, which now will hear public witnesses before concluding its questioning Thursday.

In contrast to Robert H. Bork, the Supreme Court nominee who preceded him before the committee and was rejected, Kennedy rarely took a firm view on any legal matter. Instead he tended to present both sides of a question, saying repeatedly that he had “no problem with” Supreme Court rulings that overruled his own decisions on the federal 9th Circuit Court in California.

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“Let me say at the outset,” Kennedy said, “that it’s somewhat difficult for me to offer myself as someone with a complete cosmology of the Constitution. I do not have an overarching theory, a unitary theory of interpretation. I am searching . . . .”

Sen. Patrick J. Leahy (D-Vt.) said later that he doubts a single member of the panel could predict how Kennedy would vote on key issues that will come before the court.

But Kennedy’s general, although thoughtful, answers appeared to win favor with the committee members, whose questioning appeared intended as much to advise a future Supreme Court justice of their particular concerns as to interrogate a nominee.

Most Critical Interrogator

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Even Kennedy’s most critical interrogator, Sen. Howard M. Metzenbaum (D-Ohio), ended his round of inquiry by saying: “Maybe my questions today will serve, when I assume that you will be on the bench, to cause you to reflect a bit on this very issue . . . .”

There appeared to be little doubt that Kennedy would win a favorable recommendation from the committee and that the full Senate would confirm him. Barring something unforeseen, Senate Majority Leader Robert C. Byrd (D-W.Va.) told Kennedy: “You will have the opportunity to don those robes and sit on that court. . . . I extend the hope you’ll be there for a long time.”

Summing up the two days of testimony from Kennedy, Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.), said that the nominee had shown himself to be “conservative, mainstream and fundamentally different from Judge Bork.”

Biden predicted Kennedy would get support from liberals and conservatives when his nomination goes to the Senate floor because the nominee has “an open mind and doesn’t come with an agenda.”

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Answers Surprise Some

Kennedy’s answers were so general that they appeared to surprise some committee members who were aware of his reputation as a solid conservative.

Kennedy said that the Miranda ruling--which requires police to advise suspects of their right to remain silent and to be represented by counsel before questioning--had been “almost a revolution” and “a remarkable example of the power of the courts,” which he said judges must be restrained in exercising.

Symbol of Activist Court

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But Kennedy said it would take a “strong argument” to persuade him to overturn something that has become such a part of the constitutional fabric. The issue is regarded by observers as particularly important because it has come to symbolize an activist Supreme Court and the emphasis put on expanding defendants’ rights during the 1960s by the court of the late Chief Justice Earl Warren. Atty. Gen. Edwin Meese III has been highly critical of the Warren court.

“You’re creating a problem for some on this committee,” Biden told Kennedy after his comments on Miranda. “You’re turning out not to be what anyone thought.”

Though Kennedy is regarded as a strong advocate of judicial restraint and strict constitutional interpretation, he acknowledged that judges must sometimes make subjective judgments in deciding sensitive cases.

“Between the idea and the reality falls the shadow,” Kennedy said.

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Kennedy took a moderate stance on the controversial question of whether a right of privacy is protected under the Constitution. It is not mentioned specifically but previous courts have ruled that it is implied.

Kennedy said that many values regarded as privacy, including marital privacy, would be covered under the Constitution’s protections of liberty.

In deciding which “private consensual activities” are protected by the Constitution, Kennedy said, such factors as “the essentiality of the right to human dignity” and “the inability of the person to obtain his or her own self-fulfillment” must be weighed against the rights of a state to enforce its laws.

Hearings Set Two More Days

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The committee has scheduled two more days of hearings on the nomination. Among those scheduled to testify in favor of Kennedy today are Harold Tyler, chairman of the American Bar Assn. committee that awarded Kennedy its highest rating of “well-qualified” for the post.

In a letter to Biden Tuesday, Tyler reported that the committee agreed “Judge Kennedy has not been prone to give long, expository opinions reflecting his philosophy, but rather uses his analytic and writing skills to deal with the issues raised. . . . “

Testifying against Kennedy will be Joseph L. Rauh Jr., representing the liberal Americans for Democratic Action, and a representative of the National Organization for Women. NOW has charged that Kennedy’s past membership in private clubs with discriminatory policies and several of his opinions reflect sexism.


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