Liberals Still Suspect Court Nominees Face 'Litmus Test' : Gave No Assurances on Legal Views, Kennedy States

By DAVID G. SAVAGE

Dec. 2, 1987 12 AM PT

Times Staff Writer

WASHINGTON — Supreme Court nominee Anthony M. Kennedy denied to the Senate Judiciary Committee that he gave Reagan Administration officials “any express or implied assurances” on his legal views during interviews before his nomination, a committee report released Tuesday said.

Senate liberals have been concerned that the Reagan Administration has grilled prospective judicial nominees on their views on highly controversial issues such as abortion, and some have accused conservatives of applying a “litmus test” to the nominees.

However, Kennedy, in a 54-page questionnaire filed with the committee at its request, said that he had undergone no such screening.

When asked whether anyone in the White House or Justice Department had asked his “position on . . . any specific case, legal issue or question,” Kennedy answered simply: “No.” When asked whether he had had any “communication” with any White House, Justice Department or Senate official on an issue that could come up before the Supreme Court, he replied: “None.”

Defends Club Memberships

In addition, Kennedy defended his membership in a number of private clubs, including some whose membership was once limited to white males, saying that he never favored such exclusionary policies.

However, in an interview published almost 20 years ago in Sacramento, Calif., Kennedy said that he supported a constitutional right for a club to “exclude members as it chooses. The right of private associations should be guaranteed,” according to a recent report in the Philadelphia Inquirer.

The Senate committee, which is to open the confirmation hearings on Dec. 14, has asked the Justice Department for any documents or notes on Administration officials’ interviews with Kennedy, but department spokesman Terry Eastland said Tuesday that there were no such papers. The interviews with Kennedy “related solely to personal data and his individual qualifications,” not to his legal views, Eastland said.

Kennedy said in the report that he had met with Atty. Gen. Edwin Meese III and Assistant Atty. Gen. William Bradford Reynolds four times in two weeks before his Nov. 11 nomination, but without discussing his legal views in detail.

Liberals Skeptical

Lawyers for liberal interest groups expressed some skepticism about Kennedy’s replies.

“What did they talk about in all these interviews? His golf game?” asked Ricki Seidman, legal director for People for the American Way.

Richard Mintz, spokesman for the National Abortion Rights Action League, said that Kennedy’s response was “puzzling. If they were not talking about legal issues, what were they talking about? I think it is hard to believe that the White House wasn’t seeking some assurances on the issues.”

Kennedy’s views on abortion are of special interest because the Supreme Court is now evenly divided on the issue.

Sen. Jesse Helms (R-N. C.) was quoted in a recent column by conservative commentator Cal Thomas as saying that “I’m as certain as I can be” that Kennedy opposes abortion. Helms, who once threatened to filibuster against Kennedy’s nomination, said he had met privately with him at the White House on Nov. 12 and came away assured.

“I think you know where I stand on abortion,” Helms said he told Kennedy, according to the column. “Indeed I do, and I admire it. I am a practicing Catholic,” Kennedy replied, according to Helms.

In the Senate questionnaire, Kennedy said that he belonged to several private clubs, including one whose membership was limited to “white males.” But he denied that those clubs engaged in “invidious discrimination.”

The American Bar Assn. code for judges says that it would be “inappropriate” for a judge to belong to a club that practices “invidious discrimination” based on race, sex, religion or national origin.

Kennedy said that none of his clubs had exclusionary polices that “were the result of ill will” or were “intended to impose a stigma on such persons.”

“I recognize nonetheless that real harm can result from membership exclusion regardless of its purported justification,” he continued. “Therefore, I have supported efforts to broaden the membership . . . and have resigned when those efforts have appeared to be unlikely to succeed.”

Kennedy resigned on Oct. 27 from the all-male Olympic Club of San Francisco and on Oct. 22 from the Del Paso Country Club in Sacramento, which has a small number of women members. In 1980, Kennedy said he quit the all-male Sutter Club in Sacramento because it refused to admit women. He had also belonged to an Elks Lodge in Sacramento but quit in 1978.

The earlier Kennedy view on club membership policies appeared in a January, 1968, article in the student newspaper of McGeorge School of Law in Sacramento, where Kennedy has been a longtime professor. In the article, based on interviews with Kennedy and other professors, Kennedy was quoted as saying that “I think the Olympic Club has a right to exclude members as it chooses and still have a liquor license.”

In the same interview, Kennedy said he believed courts “should leave room for some expressions of religion” in public institutions such as schools and that newspapers should be required to provide “some equivalent of the ‘equal time’ rule applicable to radio and television.” Florida enacted such a law but, six years later, the Supreme Court struck it down as a violation of the “free press” clause of the Constitution.

Staff writer Douglas Jehl contributed to this story.