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In Step With Tradition

December 18, 1987

Judging by his congressional testimony and his record, Anthony M. Kennedy of Sacramento is a reasoned and reasonable man who merits confirmation as an associate justice of the U.S. Supreme Court.

Viewed through the microscope of Senate hearings, Judge Kennedy's views have not pleased all the factions that have examined his credentials to sit on the nation's highest court. Liberals would prefer a greater clarity concerning issues of civil rights and privacy, including the rights of homosexuals and of women to have abortions. Conservatives most certainly would rather have a justice who could see the doctrine of original intent of the Framers of the American Constitution with the narrow certainty of Atty. Gen. Edwin Meese III or of Judge Robert H. Bork.

Kennedy is a conservative defender of judicial restraint who often has defined the law precisely and carefully. Such decisions may be good ones or bad ones to observers, depending on their own biases and ideologies. To Kennedy the court is an arbiter that weighs the words of the Constitution against the dictates of each case from the stand-point of justice and constitutional tradition. As the ninth justice, Kennedy would not bring his own social agenda to the Supreme Court. He would not likely move the entire court in one bold direction or another, but would serve as a balance wheel much as did retired Justice Lewis F. Powell Jr., whom Kennedy would succeed.

In a broader sense Kennedy has presented a thoughtful and eloquent view of the Constitution in modern American life. Contrary to Meese et al., he said that the Framers did not intend to draw immutable legal boundaries to which future generations had to adhere. "New generations yield new insights and new perspectives," he told the Senate Judiciary Committee.

On the evolution of civil rights and the Founders' practices of racial discrimination, Kennedy said, "The whole lesson of our constitutional experience has been that a people can rise above its own injustice, that a people can arise above the inequities that prevail at a particular time. The Framers of the Constitution originally in 1789 knew that they did not live in a constitutionally perfect society, but they promulgated the Constitution anyway. They were willing to be bound by its consequences."

Nor do Americans in 1987 live in a constitutionally perfect society. The American experiment continues to evolve and advance through legislative acts and court edicts. Kennedy has expressed great respect for Supreme Court precedent, and he would not likely participate in any significant reversal of established rights. His record indicates that he would more likely be a justice who would build on that tradition--not erode it.

There is anxiety on the right over Kennedy's absence of ideological views concerning controversies of the moment, but most Americans can be confident that as a justice his decisions over the years or decades would be tempered with fairness, compassion and a respect for liberty and justice.

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