Can’t Corral High Court, Kennedy Says : Doubts Congress Can Strip Its Jurisdiction in School Prayer Cases

Supreme Court nominee Anthony M. Kennedy says he has serious doubts whether Congress has power to strip the high court of jurisdiction over school prayer cases, according to documents released today by the Senate Judiciary Committee.

In written answers to committee members’ questions submitted after his Supreme Court confirmation hearings in December, Kennedy also defended from liberals’ criticism his decisions in several civil rights and women’s rights cases and his past memberships in private clubs that formally or informally excluded women or minorities.

Responding to a question from Sen. Howell Heflin (D-Ala.), Kennedy said there “would be grave constitutional questions” as to whether Congress has authority “to divest the Supreme Court of jurisdiction to hear cases involving school prayer if the effect were to strip the court of jurisdiction to determine rights under the First Amendment.”

Some conservative groups and members of Congress have supported legislation to strip the high court of jurisdiction over cases involving school prayer, abortion and busing for school desegregation purposes.

‘Exceptions’ Cited

They claim Congress has such court-stripping power under a constitutional provision that states the high court’s appellate jurisdiction is subject to “such exceptions, and under such rules and regulations as the Congress may make.”

In three days of hearings last month, Kennedy drew much praise as a mainstream conservative jurist but criticism from liberal groups over some of his rulings and his past memberships in exclusionary clubs.

Responding again to those points, Kennedy wrote, “Indifference to the civil rights of Hispanics, women and other minorities is unacceptable.”

Kennedy, 51, a U.S. 9th Circuit Court of Appeals judge in California since 1975, was nominated Nov. 11 for the high court seat vacant since Justice Lewis F. Powell Jr. retired last June.

The committee has scheduled a vote on his nomination next Wednesday, with full Senate action likely the following week. He is expected to win overwhelming committee approval and Senate confirmation.

Kennedy is President Reagan’s third choice for the high court vacancy. The first, Robert Bork, 60, was rejected 58 to 42 by the Senate on Oct. 23. The next nominee, Douglas Ginsburg, 41, withdrew Nov. 7 after admitting smoking marijuana in the 1960s and 1970s.