President Selects Kennedy For Seat on Supreme Court

November 18, 1987 2 min read

Washington--President Reagan, in a widely expected move, announced last week that he would nominate Judge Anthony M. Kennedy to be Associate Justice of the U.S. Supreme Court.

The federal appellate judge, described as a pragmatic conservative in the mold of former Justice Lewis F. Powell Jr., whom he would replace, is the third person selected by the President to fill the crucial vacancy on the Court.

Mr. Reagan’s first nominee, Judge Robert H. Bork, was rejected by the Senate last month by a vote of 58 to 42--the widest margin of defeat for a Supreme Court nominee in history. The President’s second choice, Judge Douglas H. Ginsburg, withdrew his nomination on Nov. 7, also amid controversy. (See story on page 1.)

Justice Powell, who retired on June 26, frequently cast the swing vote in important cases, and often wrote the majority opinion in education-related lawsuits, reflecting his experience as a former member and chairman of the Virginia Board of Education.

The White House said the President would officially transmit Mr. Kennedy’s nomination to the Senate following the completion of background checks by the Federal Bureau of Investigation.

Mr. Kennedy, currently a judge on the U.S. Court of Appeals for the Ninth Circuit, is expected to be more favorably received by the Senate than either of the two previous nominees.

Judge Kennedy was appointed to the Ninth Circuit Court by President Gerald R. Ford in 1975. Among the key decisions he has written:

In the first federal appellate ruling on the subject, Judge Kennedy in September 1985 wrote the opinion overturning a federal district court’s order that required Washington State to give male and female employees equal pay for jobs of “comparable worth,” even if the jobs themselves were not similar.

In his opinion in Washington Federation of State Employees v. Washington State, Judge Kennedy wrote that the Civil Rights Act of 1964 did not obligate the state to eliminate an economic inequality that it did not create. “The state did not create the market disparity and has not been shown to have been motivated by impermissible sex-based considerations in setting salaries,” he ruled.

The state and the employees’ union reached a landmark $482-million settlement in April 1986 before the suit could be reheard before all members of the Ninth Circuit Court.

In a 1980 opinion, Judge Kennedy struck down a provision in a federal immigration law that permitted either chamber of the Congress to overturn decisions by the Attorney General to deport persons.

In upholding his decision in ins v. Chadha in 1983, the Supreme Court also struck down similar “legislative veto” provisions in dozens of other federal laws.

In another opinion in 1980,8Judge Kennedy upheld a Navy regulation permitting the service to discharge personnel who engage in homosexual conduct.

In reaching his decision in Beller v. Middendorf, however, he noted that “the choice to engage in homosexual action is a personal decision entitled, at least in some instances, ... to full protection as an aspect of the individual’s right of privacy.”

In contrast, Judge Bork had written several legal opinions and articles in law reviews contesting the notion that individuals enjoy “substantive” rights, such as the right to privacy, under the 14th Amendment, which forbids states to deny persons “liberty” without due process of law.

Other courts have interpreted the 14th Amendment’s liberty interest to encompass a parent’s right to direct his child’s education and to guarantee students a safe school environment.--tm

A version of this article appeared in the November 18, 1987 edition of Education Week as President Selects Kennedy For Seat on Supreme Court