Here comes the judge.

HERE COMES THE JUDGE

WITH TWO STRIKES against him, President Reagan decided to play it safe: he nominated Anthony Kennedy, a so-called moderate conservative, to fill the vacancy created by Justice Lewis Powell's resignation last July.

Conservatives are understandably uneasy about a nominee voted Most Easy to Confirm. And Kennedy's nomination has gathered some peculiar accolades, including one from Laurence Tribe, the Democrats' pet constitutional scholar. In public, most anti-Bork groups are taking a wait-and-see attitude, but off the record they display a suspicious lack of venom toward the new nominee. "Kennedy is non-ideological," an ACLU staffer told me in explaining why the ACLU may well watch this fight from the sidelines. "Even though he rules against us a lot. He has a much greater respect for precedent [than Bork] and he doesn't subscribe to the original-intent scheme for voiding rights." "I don't have the impression he's an ideologue like Bork," agreed a lobbyist for Planned Parenthood.

Kennedy, appointed to the federal bench by Gerald Ford in 1975, has gained a reputation as a judge of integrity who values collegiality and sticks closely to the facts of a case. "It's like the second coming of Warren Burger," says Mike McDonald of the conservative Washington Legal Foundation. The lukewarm reception Kennedy has met in some right-wing circles comes in part from lingering disappointment over the Bork defeat. Judge Bork was one of the few conservative legal scholars who's become a crossover hit with conservative activists. "I've been waiting to see Bork on the Court since 1975," grouses McDonald. In the current environment, where intellectual pre-eminence is a political liability, it's not surprising that Reagan's new choice is less well known and generates less enthusiasm.

As a lower-court judge, Kennedy has been bound by Supreme Court precedent. So, of course, was Judge Bork, but, unlike Bork's, Kennedy's opinions breathe no hint of hostility toward the long line of Warren Court "activist" decisions usurping local authority on issues like crime, education, and, of course, abortion. "His opinions give no sense that he was intellectually engaged, and therefore repelled, by the received wisdom handed down by the Court," notes McDonald.

The skepticism on the Right, and the premature rejoicing on the Left, center on the decision Judge Kennedy rendered in 1980 in Beller v. Middendorf. Writing for the majority, Kennedy ruled that the Navy may exclude homosexuals, but said that the right to privacy may confer constitutional protection on gays in other contexts. Ken Cady, a writer for the gay newspaper the San Francisco Sentinel, was sufficiently heartened by the rhetoric in Beller to claim that Kennedy would probably provide the fifth vote for overturning Hardwick v. Bowers, the case upholding a Georgia law barring consensual sodomy. "He went out of his way to indicate that a case like Hardwick presents an entirely different issue . . ." wrote Cady. "He wouldn't have gone to that trouble if he wasn't trying to tell us something. Apparently Ed Meese and his homophobic allies [who supported Ginsburg over Kennedy] saw it the same way."

Actually, of course, Ed Meese and his Homophobic Allies aren't singing the blues over the nomination of Kennedy, who, after all, was on the Justice Department's short list of Supreme Court nominees. Conservatives in the Administration argue that Kennedy was simply salting his opinion with neutral rhetoric to persuade other, more liberal judges to join him. The language of the opinion supports that interpretation. "We recognize, as we must," Judge Kennedy wrote, "that there is substantial academic comment which argues that the choice to engage in homosexual action is a personal decision, entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual's right to privacy . . . some kind of government regulation of private consensual homosexual behavior may face substantial constitutional challenges." Given the current convoluted state of constitutional jurisprudence, that's a pretty good bet.

AFEW PRO-LIFE groups are also hot and bothered by the fact that, in Beller, Kennedy cites Roe v. Wade without expressing disapproval of it. American Life League, which frequently attacks other pro-life groups for ideological deviations, has announced it will mount a grassroots campaign against the nomination unless Kennedy publicly promises to overturn Roe v. Wade. "To have gone this far and end up nominating someone who is a question mark to us is an abdication of the Republican platform and an embarrassment to the President," says Judy Brown, the group's president. Jack Fowler of the Ad Hoc Committee in Defense of Life is less vehement, but still skeptical: "We're not out beating the band [for Kennedy]," he says. "We got our clocks cleaned running out for Ginsburg with no proof." And, breaking with the National Right to Life Committee (which endorses Kennedy), the board of the New Jersey Right to Life Committee passed a formal resolution urging the NRLC "to refrain from any action on behalf of any candidate whose position on abortion is unknown or ambiguous."

Other pro-life conservatives are more optimistic. "We've cited Roe v. Wade without disapproval ourselves in briefs for the court if it will help us win the case," says one pro-life lobbyist. "That's just what lawyers do." The consensus among pro-lifers appears to be that Kennedy is a much better choice than Ginsburg. Though Kennedy has been tagged a moderate, his nomination was originally pushed by many strong conservatives in the legal community, including a bevy of his former law clerks, such as Judge Alex Kozinski and former Justice Department official Carolyn Kuhl. Roe v. Wade is, as Judge Bork said, unconstitutional, and there is a widespread feeling among conservatives that any judge committed to interpreting the text of the Constitution will vote to overturn it. "The choices on the short list ranged from good to very good," says one legal conservative. "The worst you could say about Kennedy is that he's good."

The head-scratching, Right and Left, prompted by Kennedy's nomination reflects the new political realities. Democrats have succeeded in politicizing the tone of the judicial process, but they haven't worked out the mechanical details. How do you determine the ideological reliability of a judge as soft-spoken as Kennedy? Judges aren't yet willing to campaign for office. The information gap is filled by rumor, innuendo, and group affiliation. So I listened to conservatives worry out loud that no candidate supported by the New York Times and the Washington Post could possibly be worth voting for, while Bork-bashers wondered what Kennedy-supporters like Senator Helms and Senator Hatch know that they haven't yet ferreted out. Lack of information has also led to the spectacle of innocence-by-association, wherein Kennedy gains from being known as Howard Baker's candidate and from having been a Ford (rather than a Reagan) appointee. It also probably doesn't hurt that he was never a featured speaker at a Federalist Society convention.

But the anti-Bork groups that have embraced Kennedy under the assumption that what's bad for Ed Meese can't be all bad may be in for a little surprise. Already some Hispanic groups claim to have noticed Kennedy is "insensitive" to ethnic discrimination, and Alan Dershowitz has denounced Kennedy as a judge who "reasons like Powell but votes like Bork." But it's probably too late for left-wing groups to change their minds on Kennedy even if they want to. Having designated the Bork nomination the litmus test of the decade, they can't very well threaten to sink Democrats who obediently opposed Bork and now want to vote for Kennedy. And the prevailing sentiment on Capitol Hill seems to be to put the battle behind and get on with business. As one pro-life lobbyist told me, "I think the senators, including Joe Biden, want to declare victory and call it a day." And thus concludes the strange tale of how one of the most conservative judges on the Ninth Circuit was declared an honorary liberal and in consequence will probably become the next Associate Justice of the Supreme Court.