THE PRESIDENT'S announcement yesterday that he will nominate Judge Anthony Kennedy to the Supreme Court did not exactly come as a surprise. During the recent months of combat over the vacancy, there has always been a short list of potential nominees, and by all accounts Judge Kennedy has always been among those considered. While there was some opposition to Judge Kennedy among conservative Republicans, there have not been strong objections from the Democrats who control the Senate, and the confirmation process is expected to be less difficult for him than it was for Judge Bork or Judge Ginsburg.
Nevertheless, and in spite of what seems to be a widespread feeling of relief that this nomination is not already certain to result in conflict, it is too soon to say that confirmation is a foregone conclusion. It probably never will be anymore. The ground rules for the confirmation of a Supreme Court justice have changed. Judge Kennedy has been on the Ninth Circuit Court of Appeals for more than a decade. He has written many opinions and they will now be reread. His personal life will be examined in minute detail, and every facet of his judicial philosophy, his experience and his character will be explored. No more all-but-automatic confirmations, it seems. That's reasonable, but it is also reasonable to suggest that even a judge is entitled to due process. The marijuana question has, of course, already been asked -- no, Judge Kennedy has never even had a puff.
The American Bar Association will, for the third time in six months, be asked to evaluate the nominee and make a recommendation to the Senate. This process, because the ABA's judgment carries such great weight, must be as open as possible. The recommendation -- and dissents if there are any -- of the committee members must be fully explained so that the nominee can respond if he chooses. During the Bork confirmation proceedings the defects and unfairness of the way the committee's conclusions are made known became all too clear. People need a better guide to the nature of the ABA evaluation, a better guide to knowing how to think about it.
The administration cannot expect this review to be completed before Congress adjourns. The president and his advisers blew their chances for that in a series of recent errors. But it should be possible to complete a thorough investigation by January and begin hearings as soon as Congress returns. Choosing the right person for this high post is just as important now as it has been since June.