Rancor Over Bork Helps Kennedy’s Case

Times Staff Writers

A solidly supportive Senate Judiciary Committee wound up confirmation hearings for Supreme Court nominee Anthony M. Kennedy a day early Wednesday, after lingering acrimony over Robert H. Bork’s defeated nomination re-emerged to overshadow largely uncontroversial testimony about Kennedy.

Though some witnesses expressed concern about Kennedy’s positions on civil rights issues, the nominee benefited from frequent comparisons to Bork, and he appeared to emerge from the three days of hearings virtually unscathed.

Committee Chairman Joseph R. Biden Jr. (D-Del.) said that the committee would vote on the nomination in late January, after the Christmas recess. Kennedy then is expected to be confirmed by the full Senate shortly thereafter.

Biden indicated that if anyone on the 15-member committee votes against the moderate conservative jurist, it is as likely to be a member of the panel’s right wing as its left.


The fight over Bork, which resurfaced as senators questioned a series of public witnesses, was punctuated by Sen. Edward M. Kennedy (D-Mass.), who accused some Republican colleagues of “sour grapes,” and Sen. Alan K. Simpson (R-Wyo.), who contended that Bork--in his stormy session before the committee--had been unfairly “clobbered” from coast to coast.

ABA Draws Criticism

Conservative senators criticized the American Bar Assn. for failing to fully back Bork, President Reagan’s first nominee for the high court vacancy, and Douglas H. Ginsburg, the second nominee, who withdrew. They challenged the day’s principal witness, Harvard law professor Laurence H. Tribe, who endorsed Kennedy, for his earlier vehement opposition to Bork.

But Sen. Patrick J. Leahy (D-Vt.), a Bork opponent, replied: “No nefarious group, no cabal, no collective conspiracy sunk the Bork nomination.”


“The real controversy is still Judge Bork,” Sen. Kennedy later declared. "(But) Judge Kennedy’s America is quite different from the kind of America that Judge Bork was describing. . . . And because of that, I believe that the cause of justice in America is better served (with Kennedy on the Supreme Court).”

Tribe, a noted constitutional lawyer and scholar, outlined what he said are crucial differences between the two nominees, saying that Kennedy takes a view of the Constitution that is “considerably broader.

“Judge Kennedy is not an ideologue with a clear agenda of revisionism. He is an open-minded person with a commitment to an evolving Constitution,” Tribe said.

He said in particular that Kennedy took a broader view in applying First Amendement protections to “all forms of human expression” and in recognizing constitutional protection of some forms of privacy, including marital privacy.


Bork Defenders Rise

While both Democrats and Republicans appeared to accept the favorable analysis of Kennedy, Simpson and other former Bork proponents were quick to defend Bork against the old charges, contending that he--like Kennedy--is an open-minded judge.

The battle over Bork also dominated the questioning of Harold Tyler, chairman of the American Bar Assn. panel responsible for judicial evaluations, who testified that the panel had voted unanimously to give Kennedy its highest recommendation.

Conservative senators expressed concern that the panel had split 10 to 4 in giving Bork that recommendation and that a committee member’s private criticism of Ginsburg had been leaked to the press.


During the three days of testimony, the committee never questioned Kennedy or any other witness about his past lobbying work for Schenley Industries Inc., which paid more than $100,000 in fines for wrongdoing committed while Kennedy was the company’s chief Sacramento political representative. Asked after the hearing if it had been overlooked, Biden said that an FBI investigation of Kennedy’s work for Schenley found he was “in no way related to the problem,” which involved kickbacks to distributors.

The witnesses who were critical of Kennedy focused on what they said was a lack of sensitivity on civil rights.

‘Talks a Good Game’

“He talks a good game, but he doesn’t play that game,” said Joseph L. Rauh Jr., vice chairman of the liberal Americans for Democratic Action. Kennedy’s rulings on cases addressing voting rights, fair housing and wage and sex discrimination indicate that Kennedy “is leaning the wrong way on the Bill of Rights,” Rauh said.


Another principal Kennedy opponent, Molly Yard, president of the National Organization for Women, argued that Kennedy’s long-time membership in exclusive all-male clubs and his 1985 ruling striking down an attempt in the state of Washington to require salaries to be calculated under a system of comparable worth “reveals a total lack of commitment to equality and justice under law.”

Antonia Hernandez, president and general counsel of the Mexican American Legal Defense and Educational Fund, voiced, “grave concern” about Kennedy’s rulings in some cases involving Latinos.

“He comes from California and has lived amongst us all his life,” she said. “There should be much more sensitivity to the subtleties of discrimination.”

Wants Written Assurances


She urged the committee to obtain written assurances from Kennedy that he will be sensitive to discrimination that Latinos face.

The critical testimony is not expected to slow Kennedy’s confirmation but it may help to strengthen the message of concern about those issues that liberal senators have said they tried to send Kennedy.

“I have grave doubts about Judge Kennedy, grave doubts,” Biden said. “If I thought he’d continue to vote just the way he has in the past, I don’t see how I could vote for him.” However, Biden and the other liberal senators on the panel indicated they believe Kennedy would be responsive to their concerns.