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Court nominee Kennedy will face probing questions

By Peter OsterlundStaff writer of The Christian Science Monitor / December 14, 1987



Washington

A black vinyl notebook sits on Sen. Charles Grassley's desk, its loose-leaf pages bearing typed questions on the great juridical topics of the day. ``Capital punishment, civil rights, judicial restraint, Tenth Amendment, federalism,'' says the Iowa Republican, flipping through dividers neatly categorizing the questions he will fling at President Reagan's latest Supreme Court nominee, federal appeals court Judge Anthony Kennedy.

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The Senate Judiciary Committee today begins its hearings on Judge Kennedy's nomination to fill the high court vacancy created by the retirement of Associate Justice Lewis Powell.

Despite 12 years on the bench and more than 400 majority opinions to his name, Judge Kennedy's views on matters that most sharply divide the Supreme Court remain largely unknown.

``I don't have any reason to think he's a whole lot different from [Justice] Powell, but there's a lot we still have to find out about this fellow,'' says Senator Grassley.

He and his colleagues on the Judiciary Committee vow to leave no jurisprudential stone unturned in their quest to determine what sort of Supreme Court justice Kennedy would be if confirmed.

On cases involving issues of affirmative action, abortion, and the proper relationship between church and state - some of the controversies the court is expected to address during the next few years - Kennedy's vote may be the tie breaker. So panel members will try to elicit his judicial philosophy on such closely related matters as civil and privacy rights.

``Kennedy will hear many of the same sorts of questions as Judge [Robert] Bork,'' says Sen. Howard Metzenbaum (D) of Ohio, a member of the committee and a leader in defeating Judge Bork's Supreme Court nomination.

But the Kennedy hearings promise to be a benign affair in contrast to the Bork inquiry. Kennedy's nomination, for example, has generated minimal controversy. While Judge Bork's nomination was greeted with extreme enthusiasm by some conservatives and horror by many liberals, Kennedy's name has provoked near-deafening silence across the political spectrum.

While a third of the members of the American Bar Association committee that evaluates judicial nominees refrained from granting Bork its highest possible rating, the committee last week unanimously recommended Kennedy with its top grade of ``well qualified.''

Although Bork's eventual Senate confirmation was never assured, Kennedy's appears all but inevitable, and the hearings are not expected to last more than a week.

If Kennedy's candidacy falters, it will almost certainly be as a result of his performance in the hearings. The atmosphere at the hearings could sour quickly if Kennedy is not forthcoming in his constitutional views - even though Supreme Court nominees traditionally were rather reticent before Bork shattered precedent with his exhaustive testimony.

The alliance of liberal activist groups that mobilized to defeat Bork's candidacy has remained largely mute in the face of Kennedy's nomination. But many of those activists say they are ready to spring into action if Kennedy expresses views similar to those of Bork.

``We're watching and waiting,'' says Melanne Verveer of People for the American Way, a civil liberties organization that fought against Bork. Among the major groups, only the National Organization for Women (NOW) has announced its opposition to Kennedy. But NOW executive vice-president Patricia Ireland claims that ``five or six'' other organizations plan to announce their opposition. Ms. Ireland points out that there will be time for opponents to build their case against Kennedy after the hearings end; a vote on the Senate floor will come after Congress's Christmas recess.

By then, such activists hope their chief problem will have been solved: the fact that Kennedy remains very much an enigma. Bork had compiled an enormous record of writings and speeches during his lengthy career as an academic, government official, and judge. Kennedy's corpus, on the other hand, is largely limited to his decisions and a few dozen speeches to groups of fellow judges, graduating law students, and civic clubs.

The tone of this record suggests a jurist of moderation. Some of his speeches have raised questions among liberal activists, however, about whether his views in some important areas - such as ``unenumerated rights,'' including the right to sexual privacy - hew too closely to the conservative line espoused by Bork.

``The problem is that there just isn't enough to hang an opposition strategy on - except for the fact that he's Reagan's man,'' says one leading opponent of the Bork nomination who has taken no position on Kennedy. ``If you accept the idea that Reagan is going to get a nominee on the court, than this is as good a nominee as you're going to get.''