Will He Disappoint Conservatives? : Kennedy Remains Enigma as to Future Court Rulings

Two decades ago, it was Harry A. Blackmun who advanced to the Supreme Court almost by default after the Senate twice rebuffed President Richard M. Nixon’s efforts to place Southern conservatives on the court.

Now it is Anthony M. Kennedy, like Blackmun an obscure federal appeals court judge, who became President Reagan’s nominee for the court only after two more conservative Reagan choices failed to gain Senate confirmation.

Blackmun soon stunned his conservative backers by writing the Supreme Court’s most expansive and controversial opinion in a generation, the 1973 ruling in Roe vs. Wade, which gave women a constitutional right to an abortion.

Whether Kennedy, who is to take the oath of office as a Supreme Court justice today, will similarly disappoint his conservative backers cannot be known.

Most of his friends, as well as those who have studied his court opinions, predict that he will be a moderate conservative similar to Reagan’s first appointee, Justice Sandra Day O’Connor. But, at the very least, the Blackmun precedent suggests that predictions are suspect. And the parallels between Blackmun and Kennedy are intriguing.

Nixon promised that Blackmun, an old friend of conservative Chief Justice Warren E. Burger, believed in “strict constructionism”--his term for a narrow and traditional reading of the Constitution. Likewise, Reagan promised that Kennedy, an old friend of Atty. Gen. Edwin Meese III, believed in “judicial restraint.”

Blackmun was unanimously confirmed by a Senate that had been exhausted by the struggles over Nixon’s previous nominees, Clement F. Haynsworth Jr. and G. Harrold Carswell. Similarly, a relieved Senate unanimously confirmed Kennedy after Robert H. Bork was defeated and Douglas H. Ginsburg withdrew after disclosures of marijuana use.

Nor was Blackmun the first nominee who seemed to change his ideological stripes after donning the black robe of a Supreme Court justice.

Kennedy Appointee

In 1962, for example, President John F. Kennedy and his brother, Atty. Gen. Robert F. Kennedy, turned to a close friend and Justice Department deputy who had played a key role in the effort to enforce civil rights laws in the South. Twenty-five years later, the now 70-year-old Justice Byron R. White is one of the court’s staunch conservatives.

And former Chief Justice Earl Warren, the leader of the liberal court of the 1960s, had been nominated by Republican President Dwight D. Eisenhower.

Predicting where Justice Kennedy will fit on the court is made all the more difficult by the changing nature of the key questions that divide the panel. When the civil rights issue shifted from outright discrimination in the 1960s to affirmative action in the 1970s, for example, White switched from the pro-civil rights camp to the conservative side, arguing that the Constitution did not permit either affirmative or negative preferences based on race.

Split on Abortion Issue

When Blackmun and White were under consideration for the court, abortion did not figure to be a dominant issue for review. But, since 1973, Blackmun has become the leading voice in arguing that the Constitution’s guarantee of a “right to liberty” includes a woman’s right to end her pregnancy. By contrast, White has said “no” in every abortion case, arguing that the Constitution’s protections were never meant to cover abortion.

The U.S. 9th Circuit Court of Appeals, where Kennedy sat until his elevation to the Supreme Court, recently gave a preview of two tough issues he probably will face in his new job--the rights of homosexuals and drug testing of government employees.

A third major constitutional dispute--whether Congress may provide for independent counsels to investigate corruption in the executive branch--is also awaiting Kennedy and his new colleagues.

Last week, on the homosexual rights issue, the 9th Circuit struck down Army regulations barring gays from military service, ruling that restrictions based simply on homosexual “orientation” violate a candidate’s guarantee of “equal protection of the laws.”

In 1980, in a similar case, Kennedy wrote an appeals court decision based on a nearly opposite conclusion, upholding the Navy’s dismissal of three sailors accused of homosexual conduct. However, his opinion suggested “that some kinds of governmental regulation of private consensual homosexual behavior may face substantial constitutional challenge”--leaving substantial doubt on how he would vote when the issue reaches the high court, as it surely will.

Key Vote on Gay Rights

Kennedy’s vote on gay rights cases is expected to be a key one, because the high court has been closely split on such questions. In 1986, in a highly controversial decision, it upheld a Georgia law that made sodomy a crime, but the vote was 5 to 4 and the swing vote was cast by Justice Lewis F. Powell Jr., who has since retired.

In the 1980 Navy case, Kennedy’s opinion was so hesitant in its defense of the military that conservative Sens. Jesse Helms (R-N. C.) and Gordon J. Humphrey (R--N. H.) considered opposing Kennedy’s nomination after they read it.

Since October, the high court has had before it a petition from a government workers’ union questioning the constitutionality of a Customs Service policy requiring drug testing for those seeking promotions to sensitive jobs. The employees say that the Constitution’s ban on “unreasonable searches and seizures” allows the government to test an individual only if it has reason to believe that he has used drugs. An appeals court in New Orleans disagreed, saying that the policy was reasonable in light of the Customs Service war against drug smuggling.

A week ago, the 9th Circuit panel with three judges appointed by President Jimmy Carter threw out a drug-testing requirement for railroad workers manning trains involved in accidents. This split between the two circuit courts virtually assures that the high court will consider the issue.

Kennedy has not tipped his hand on drug testing either, although in several speeches he has urged courts to take a strong stand against drug users and drug peddlers.

Independent Counsel Issue

The high court, after Kennedy’s arrival, is also expected to review a constitutional challenge to the post-Watergate law that established independent counsels. Its decision should have a great impact on the highly sensitive independent counsel investigations that have been directed against a number of Administration officials.

On a 2-1 vote, an appeals court in Washington concluded that a President’s constitutional duty to see that the laws are “faithfully executed” requires that all such prosecutors operate under the control of the executive branch. However, in the 1978 law, Congress provided that the counsels be appointed by a three-judge panel.

This case pits two competing constitutional principals. Critics of the independent counsel concept say that it violates the Constitution’s “separation of powers.” Supporters say that the law furthers the constitutional notion of “checks and balances.”

Solid Reagan Bloc

Whatever the outcome in these cases, it is clear that Kennedy’s addition gives the court a solid bloc of Reagan appointees who probably will serve together for more than a decade.

Kennedy, like Justice Antonin Scalia, is 51. O’Connor is 57, and Chief Justice William H. Rehnquist is 63. By contrast, the liberal bloc is a generation older. Justice William J. Brennan is 81; Blackmun and Thurgood Marshall are 79.

In one sense, a conservative and Republican tilt to the Supreme Court should be no surprise, because it has been 21 years since a Democratic President put a new justice on the court. President Lyndon B. Johnson nominated Marshall in 1967, and since then all the nominees have been Republican.