Back to Full Strength

As a member of the U.S. Supreme Court, Judge Anthony M. Kennedy will be a restrained and judicious man for these politically delicate times--not an ideologue who will tip the nation’s judicial scales drastically in one direction or another, but a justice who will weigh the merits of each case carefully. As such, Kennedy’s nomination by President Reagan breezed through the Senate Judiciary Committee on a 14-0 vote Wednesday. With Senate Majority Leader Robert C. Byrd (D-W.Va.) offering to waive certain procedural requirements, Kennedy could be confirmed by the full Senate as early as today or early next week. After months, the court finally will be back to its full complement of nine.

The President commented, “I look forward to a positive vote soon by the Senate that will bring this distinguished and scholarly legal mind to the court.” Kennedy is not the nominee that progressives would prefer, or would expect to get from a Democratic President. Nor is he the conservative ideologue that Atty. Gen. Edwin Meese III and the President would have preferred--one who would vote on the court to institutionalize by fiat many of the New Right ideas that the President has failed to win in Congress.

Nor is Kennedy simply somewhere in between. He is a respected jurist who will balance the conflicting political forces of left and right and, most likely, rule on the side of good sense. With the court currently split 4-4 after the retirement of Justice Lewis F. Powell Jr., Kennedy will be the pivot jurist. In which direction he will pivot on any particular case is impossible to predict. Based on his record, however, Kennedy will make a sincere effort to be fair and just.

The President of course could have saved himself and others considerable effort and upset by choosing Kennedy in the first place, as many wanted him to do. Instead, he yielded to his old conservative instincts and opted for Judge Robert H. Bork in his first attempt to fill Powell’s seat. After a contentious round of hearings, Bork was rejected by the Senate because of his ideological and unorthodox views on the law--not, as his supporters contend, out of some political vendetta. The President’s next nominee, Douglas Ginsburg, withdrew himself from consideration after a controversy erupted concerning his admission that he had smoked marijuana as a law student and law professor.

Everyone breathed a sigh of relief when Reagan finally settled on Kennedy of Sacramento, a member of the 9th Circuit Court of Appeals for the past dozen years. His court record in support of women and minorities is disappointing in respects, as is his personal decision to remain for many years in private clubs that practiced discrimination. He has left those clubs, however, and Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) said that he considers Kennedy a person whose views “are still evolving.” It is hoped that Kennedy, as one who respects judicial precedent, will not waver as a Supreme Court justice in his total commitment to equal justice for women and minorities. If so, he is bound to bring honor to the court.