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A Jurist to Fit Powell's Shoes : His Conservativism Is Sound, So Is His Adherence to Precedent

November 23, 1987|GERALD F. UELMEN | Gerald F. Uelmen is dean of Santa Clara University School of Law.

The Supreme Court nomination of Judge Anthony Kennedy will focus attention on the published opinions he has authored during 12 years as a judge of the U.S. 9th Circuit Court of Appeals. Unlike the District of Columbia Circuit, where Judges Robert H. Bork and Douglas Ginsburg both sit, the 9th Circuit handles a broad array of criminal and civil litigation. It is the largest of the federal circuit courts and includes nine Far Western states.

Special interest groups of every stripe will find something to praise and something to condemn among the 335 majority opinions written by Kennedy. That fact alone is encouraging. The results of his opinions are not predictable.

One of the complaints voiced about Bork was that results could be predicted by identifying the parties in cases he heard. Where the government was a party, the government invariably won--unless business was on the other side. No such patterns emerge from Kennedy's decisions. He shows no reluctance to overrule the decision of the lower court, even when that decision was in favor of the government. About 40% of all of his majority opinions during the past 12 years have, in whole or part, reversed or vacated the ruling being reviewed. In comparison, the national average for all U.S. Circuit Court judges is a 16% reversal rate. Even in criminal appeals, Kennedy's reversal rate is much higher than average: 30%, compared to a national average of 12%. How does a judge who reversed so many lower court decisions maintain a reputation as a "conservative"?

A review of his published opinions confirms the legitimacy of his claim to be a disciple of "judicial restraint." Many of his "reversals" do not require a lower court to "do it over," but simply limit the breadth of a lower court ruling or require more precise findings. His opinions are remarkable in their attention to detail and insistence upon procedural regularity. He rarely invokes the doctrine of "harmless error," the refuge of too many judges who seek vaporous excuses to avoid reversals. Invariably, he pursues the narrowest ground for a ruling, eschewing ringing statements of broad principles.

Certainly, part of the explanation for Kennedy's judicial approach can be found in the nature of the court on which he sits. The 9th Circuit has gone through two remarkable transitions in the past decade. During his single term, President Jimmy Carter appointed 15 of the then 23 judges sitting on the 9th Circuit. The court achieved a reputation as one of the most liberal in the country, and matched that reputation with the highest rate of reversal by the U.S. Supreme Court.

To a great extent, the 9th Circuit's reputation as a "liberal" court packed with Carter appointees was overblown. The high reversal rate was manipulated by the Solicitor General's selection of cases for U.S. Supreme Court review. Recent appointments to the court have profoundly shifted the balance. President Reagan has now made nine appointments to the court, with two more pending. The volatile mixture produces a high rate of dissenting opinions.

Kennedy, an appointee of President Gerald R. Ford, has never assumed a confrontational posture. He adheres to precedent, and even those who dissent from his opinions frequently remark upon how "well-crafted" they are. In 90% of his opinions, there is no dissent, a higher rate of unanimity than most of his colleagues. He also writes fewer dissenting or concurring opinions than many of his judicial colleagues.

The "law and order" rhetoric served up by the Administration in nominating Judges Bork and Ginsburg fit them like a suit that was four sizes too small.

Kennedy's fit is even tighter. He applies the same even hand in reviewing the convictions of mobsters and drug dealers that he applies to the claims of bankers and labor unions.

In United States vs. Spilotro, Kennedy rejected a government appeal from a court order suppressing evidence seized from an alleged Chicago Mafioso because the warrant was not particular enough in describing the evidence to be seized.

He rejected the government's urging to apply the "good faith" exception to the exclusionary rule recognized by the U.S. Supreme Court in 1984, concluding that 9th Circuit precedent precluded such a course.

Although the logjam of California death penalty cases has not yet hit the federal courts in the 9th Circuit, Kennedy has had occasion to write opinions in at least two death penalty cases. He affirmed the judgment of death against Jimmy Neuschafer, a Nevada prisoner convicted of murdering a fellow prison inmate by strangulation, but only after insisting on a remand hearing to resolve a factual dispute over the admissibility of a confession. In another case, he reversed a death penalty judgment the Arizona Supreme Court had upheld, finding that a failure to instruct the jury on the possibility of a lesser verdict of second-degree murder was a violation of the federal constitutional right to due process of law.

Kennedy has been assailed as a "vanilla conservative" by the far right, whose shrill demands for a conservative ideologue led to disaster in the Senate.

But the brand of Kennedy's conservatism bears a remarkable resemblance to that of Justice Lewis Powell, whom he would replace on the high court. His experience on the volatile 9th Circuit has given Kennedy excellent preparation to fill Powell's shoes. He will take each case as it comes, and avoid sweeping pronouncements in deciding it. He brings no agenda to the court. At the center of a sharply divided court, he appears to be precisely what we need.

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