Washington — NOW says ``never'' to the proposed elevation of federal appeals court Judge Anthony Kennedy to the United States Supreme Court. ``Kennedy is Bork in Powell's clothing,'' says National Organization for Women vice-president Patricia Ireland. Federal Judge Robert Bork, who was nominated to fill the vacancy left by the retirement of Supreme Court Associate Justice Lewis Powell, was rejected by the Senate in October.
Much of NOW's ammunition against Judge Kennedy is supplied by two of his appeals court rulings - one on the rights of homosexuals in the military, the other on equal pay for women.
The women's rights group says Kennedy's opinion upholding the right of the Navy to discharge personnel who engaged in homosexual conduct violates the constitutional right to privacy. Judge Kennedy ruled that the government had a compelling interest to bar homosexuals, which overrode the privacy issue, in order to preserve morale and the effectiveness of the Navy as a military force.
``To me this decision is a flashing red light,'' says Ms. Ireland. ``I'm wondering what overriding state right will be used to overturn Roe v. Wade'' - the landmark Supreme Court decision protecting a woman's right to abortion.
Unlike Judge Bork, who denies that the Constitution creates a right to privacy in sexual matters, Kennedy stopped short of saying homosexuals have no right to privacy. He said the privacy matter was a different question from the issue involved in the Navy case.
The second ruling on which NOW opposes Kennedy involved female govenment employees in Washington State. A trial court ordered the state to pay workers under a ``comparable worth'' system which would compensate for discrimination that allowed pay disparities between jobs usually done by women as opposed to jobs usually done by men. Judge Kennedy overruled, saying that eliminating inequality was a desirable goal but not the business of the court. Though the law requires equal pay for equal work, he held, it does not call for interference with free-market forces to assign similar value to separate categories of jobs.
NOW president Molly Yard asks, ``If employers, especially government, have no obligation to correct injustice, what remedies do women and people of color have to overcome the effects of sex and race discrimination?''
Constitutional scholar Sheldon Goldman of the University of Massachusetts says the Washington State decision ``reflects a basic conservatism of Kennedy that won't go beyond the letter of the law.''