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Third Time Around

November 12, 1987

Think of the grief the Reagan Administration might have spared itself if the President had nominated Judge Arthur M. Kennedy of Sacramento to the Supreme Court in the first place. In spite of early reservations of extreme right-wingers such as Sen. Jesse Helms (R-N.C.), Kennedy appears to meet the President's test of a conservative jurist who believes in judicial restraint and strict interpretation of the Constitution.

Given the recent experience of two failed court nominations, there is not likely to be a rush to judgment on Kennedy of the U.S. 9th Circuit Court of Appeals. The immediate reaction from key senators of both parties was that Kennedy's record is impressive, but that they will examine his opinions and background carefully before ratifying his nomination.

Kennedy himself made an important gesture toward the Senate at the White House press briefing room Wednesday when he recognized that house's constitutional role in the process: "I'm looking forward to this scrutiny that the Senate should give any nominee in the discharge of its constitutional duty." The 12-year veteran of the appeals court, an appointee of Gerald R. Ford, also impressed onlookers as reasonable, personable, self-assured and good-humored. All of those characteristics should work to his advantage during what is certain to be a careful and rigorous confirmation process. Kennedy already has demonstrated his patience by surviving two trips to Washington and one false alarm before his nomination finally was made.

Kennedy's liberal colleagues speak highly of him, of his legal reasoning and his personal integrity and honesty. But conservatives should not be distrustful of Kennedy just because he is lauded by liberals. They certainly do not always agree with Kennedy's decisions, but they respect the process by which he reaches them. This is an important attribute on the Supreme Court, where respect of one's peers and the ability to persuade can influence decisions.

The conservatives' problem, and the President's, has been a desire to find a swing-vote jurist who could put the stamp of the Reagan Revolution firmly on the court's work for decades to come. The dilemma for them is that it is impossible to have an ideologue who passes all the conservative litmus tests, such as abortion and school prayer, and still meet their perceived criteria for being a strict constructionist who exercises what they call judicial restraint.

Americans have demonstrated time and again, through elections and opinion polls, that they will tolerate moderate swings of the political pendulum one way or the other, but that they are not comfortable with political extremism.

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