The Senate Judiciary Committee will begin hearings on the nomination of Judge Anthony Kennedy on Dec. 14. If all goes well, the Senate will vote in late January and Kennedy will take his place on the court in time for the oral arguments of Feb. 22. By that time the court will have heard more than half the cases set for argument at this term, but better late than never.
So far, the only influential voice raised against Judge Kennedy is the voice of the National Organization for Women, but witnesses for blacks and for homosexual groups probably will testify in opposition. Their objection is that by his vote in certain cases before the 9th U.S. Circuit, Kennedy has shown an insensitivity to civil rights.
The objection is wholly without merit. During his 12 years on the circuit bench, Kennedy has written more than 400 opinions. Four of these have dealt importantly with the civil rights of minorities. In each instance, Kennedy acted in accordance with well-established precedents.
The leaders of NOW are especially upset by Kennedy's 1985 opinion in the comparable worth case from Washington State. The case arose in 1974 when the state commissioned a study of its employment practices. A consultant looked at 62 job classifications primarily filled by women and 59 classifications predominantly held by men. Then he set up a complex rating system by which each job was to be evaluated. In the end he concluded that scores of positions were of ''comparable worth.'' For example, the job of a laundry operator (female) was comparable to the job of truck driver (male) and therefore should be paid at the same rate.
When the state failed immediately to adopt this novel proposition, a union representing state employees brought suit. A federal district judge held that the state had violated the Civil Rights Act of 1964 by intentionally discriminating against women. The state appealed to the 9th Circuit, where the opinion of the lower court was reversed.
Judge Kennedy, speaking for a unanimous panel, found that the disparities were simply the consequence of the marketplace. The state had not been motivated by sex-based considerations. Absent such evidence, he said, law does not permit federal courts to intervene in a state's system of compensation. Kennedy's opinion was a straightforward restatement of elementary law.
A second case involved the Navy's action in honorably discharging one woman and two men on their own admission of homosexual relations while in service. The three sued separately, charging violation of their civil rights. The sole question before the court was whether a naval regulation prohibiting personnel from engaging in homosexual conduct should be nullified. Said Kennedy:
''In view of the importance of the military's role, the special need for discipline and order in the service, the potential for difficulties arising out of possible close confinement aboard ships or bases for long periods of time, and the possible benefit to recruiting efforts, we conclude that at the present time the regulation represents a reasonable effort to accommodate the needs of the government with the interests of the individual.''
Kennedy went out of his way to observe that he and his colleagues were not passing on the wisdom of the Navy's rule. That is not their function. The regulation says that, except in rare instances, homosexuals ''cannot be tolerated in a military organization.'' The rule ''is perhaps broader than necessary.'' In other, nonmilitary contexts, such a rule might infringe constitutional liberties. Nothing in the opinion suggests a callous disregard of the civil rights of homosexuals generally.
In a third case, Kennedy wrote a concurring opinion agreeing that after nine years of desegregation, Pasadena, Calif., was entitled to an end to judicial supervision of its schools. In a fourth he upheld a judgment against a small town in California for discriminating against a Mexican-owned restaurant that sought a liquor license.
A close reading of the four cases persuades me that Kennedy is a careful, methodical, unspectacular jurist. If these cases are the best evidence that liberals can cite against him, they have no case at all.