High court nominee apparently home free. Liberal senators sing Judge Kennedy's praises
Washington — If there ever were any questions whether the US Senate would confirm federal appeals court Judge Anthony Kennedy to the United States Supreme Court, they have been muzzled by events of the past week. During two days of subdued but pointed questioning from committee members, Judge Kennedy came across to many liberal senators as precisely the sort of conservative jurist they were looking for when they rejected Judge Robert Bork's candidacy for the high court.
The seat being filled was vacated last June when Associate Justice Lewis Powell Jr. retired.
The impression left by Judge Kennedy on members of the committee seemed to overwhelm criticism yesterday by a handful of witnesses opposed to his nomination. The hearings, scheduled to end today, seem to have ensured Kennedy's overwhelming confirmation by the the full Senate in late January or early February.
Kennedy embraced the notion of a constitutional right to privacy, which Judge Bork rejected during Senate hearings in September. He asserted that the First Amendment applies to ``all ways in which we express ourselves''; Bork had once questioned whether the Constitution protected anything other than political speech.
Kennedy expressed an inclination to interpret the Constitution much more liberally in protecting the rights of women, minorities, and accused criminals - or to follow the precedent established by earlier Supreme Court decisions that did so - than either Bork or Reagan administration conservatives such as Attorney General Edwin Meese III have advocated.
At the same time, Kennedy seemed to pick his way along a fine line, gingerly avoiding the appearance of membership in either the liberal or conservative camps. He declined to offer general views on some of the controversial issues before the high court, such as affirmative action. And he resisted efforts to draw him into a critique of recent Supreme Court decisions, including those attempting to define the constitutional right to privacy.
Above all, Kennedy refused to tip off senators as to how he would vote on potential future cases, such as those dealing with abortion. ``I do not offer myself as someone with a complete cosmology of the Constitution. I do not have a unitary theory of interpretation,'' he told the committee, adding that he was still ``searching ... for the correct balance in constitutional interpretation.''
``You have an open mind,'' Judiciary Committee chairman Joseph Biden Jr. told Kennedy at the end of his testimony Tuesday. Added Sen. Strom Thurmond of South Carolina, the committee's senior Republican: ``The only conclusion that we can draw is that you're a good man and ought to be confirmed.''
The committee is not scheduled to vote on Kennedy's confirmation until after the Christmas break. But his confirmation appeared to be inevitable.
In contrast to the Bork hearings, there was no crush of reporters during Kennedy's testimony on Monday and Tuesday. And no throngs of spectators lined up on Constitution Avenue, waiting for a few minutes' admittance to hear Kennedy, as they did for Bork.
Yesterday afternoon, Molly Yard, president of the National Organization for Women, and a handful of other Kennedy opponents pitched their case against his nomination. ``Kennedy's record reveals a total lack of commitment to equality under the law,'' Ms. Yard argued.
The assertion did not appear to strike much resonance among the few senators in attendance.