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Judge Kennedy Called Front-Runner for Court : But Official Says White House Will Be Talking to Others; Californian Meets Baker in Capital

November 09, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — White House and Justice Department officials said Sunday that a new nominee for the Supreme Court vacancy will be named soon and one senior White House official said that federal appeals court Judge Anthony M. Kennedy of Sacramento--who just missed being named 10 days ago--is now the front-runner.

Just hours after Judge Douglas H. Ginsburg withdrew his name from consideration Saturday afternoon, the 51-year-old Kennedy boarded a plane at McClellan Air Force Base near his home and was flown to Washington.

But Kennedy had made the same hurried trip to Washington on Oct. 28, only to have President Reagan decide after a 20-minute meeting that Ginsburg would be the nominee.

Choice Not Confirmed

After Kennedy's arrival in Washington, he met privately at an undisclosed location with White House Chief of Staff Howard H. Baker Jr., who, with Atty. Gen. Edwin Meese III has played a central role in interviewing potential nominees for presentation to the President.

"It's fair to say he's the leading candidate," the senior White House official said. But he added: "We'll be talking to others this week."

Another senior White House official, who refused to be identified, said the Administration wants to have an announcement by midweek, possibly as early as Tuesday.

"Time is the overwhelming consideration," said one Administration official. "If we wait until January, there is no more than a 50-50 chance of getting someone confirmed in Reagan's term."

Unlike Kennedy, two of the judges who were finalists two weeks ago--Ralph K. Winter Jr. and William W. Wilkens Jr.--were not in Washington Sunday.

Winter, a former Yale University law professor and a judge on the U.S. 2nd Circuit Court of Appeals, was here Saturday to speak at a conference of the conservative Federalist Society, but he checked out of his hotel Sunday morning and a friend said he was driving back home to New Haven, Conn.

Wilkens of Greenville, S.C., who sits on the U.S. 4th Circuit Court of Appeals, has been boosted as a candidate by his former boss, Sen. Strom Thurmond (R-S.C.). He was on weekend National Guard duty Sunday, a reporter who called his home was told.

Before Ginsburg was named two weeks ago, Justice Department attorneys and conservative legal experts were concerned by a historical precedent, the nomination of Justice Harry A. Blackmun.

An obscure Republican appeals court judge, Blackmun was nominated by President Richard M. Nixon in 1970 after two previous nominees--Clement F. Haynsworth Jr. and G. Harrold Carswell--failed to win Senate confirmation. But Blackmun went on to become one of the more liberal members of the Supreme Court, and in 1973 authored its opinion giving women the right to abortion.

Conservatives Worried

Some conservatives who helped to push the choice of Ginsburg rather than Kennedy said they worried that Kennedy could turn out to be "another Blackmun."

But another precedent now worries Reagan's aides. In June, 1968, Justice Abe Fortas was nominated to become chief justice by lame-duck President Lyndon B. Johnson. Senate Republicans--including Thurmond--filibustered the nomination so that the soon-to-be-elected President Nixon could nominate the person who would fill the seat.

With the Fortas precedent in mind, some Republicans are urging the White House to move quickly so that work on the nomination can be completed before presidential election politics dominates the nation's agenda.

"I think March or April may well be too late. I believe you're going to see a very different political tone on this issue if we go into March or April," Sen. Arlen Specter (R-Pa.), a member of the Senate Judiciary Committee, said Sunday on ABC's "This Week With David Brinkley."

By then, a front-runner may emerge from the early Democratic primaries and the Democratic majority in the Senate could choose to delay a Supreme Court nomination.

"If President Reagan is going to make this nomination, it had better come to fruition before April," Specter said.

Senate Judiciary Committee aides said over the weekend that hearings on a third nominee could begin before the end of December if the White House submits a name soon. But they said they doubt the Senate could complete action before the new year.

Two weeks ago, when the White House submitted a list of possible court nominees to key senators, Judge Kennedy was one of the few who did not generate immediate opposition. However, when it became clear that he was among the front-runners, he encountered strong opposition from conservatives in the Justice Department and on Capitol Hill because, as one put it, he is "not one of us." As an appeals court judge, Kennedy frequently has sided with the police and against criminals, but his opinions were not predictably conservative.

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