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Playing Games With the Court : With the Thomas Nomination, Bush Has Left the Democrats With Few Moves

July 07, 1991|William Schneider | William Schneider is a contributing editor to Opinion

WASHINGTON — George Bush has done it again. Last year, when he nominated David H. Souter to the Supreme Court, he found the only 50-year-old Harvard graduate in the country who had no known views on abortion. Now he has come up with Clarence Thomas to replace Justice Thurgood Marshall. Bush could hardly have designed a more politically clever choice.

Thomas is black. He is a conservative Republican. He was raised a Catholic and educated in Catholic schools and spent a year in a seminary considering whether to enter the priesthood. The President said he saw no need to ask him any "litmus test" questions about abortion.

As for breadth of experience, Thomas grew up in Pin Point, Ga, where he was raised by his grandparents under conditions of oppressive poverty and racism. He was the first member of his family to go to college, then to Yale Law School.

Thomas served for eight years as chairman of the Equal Employment Opportunity Commission, where he was an ardent critic of quotas--exactly the position Bush has claimed in the civil-rights debate. Last year, the Senate confirmed the President's nomination of Thomas for a seat on the federal appeals court with only two dissenting votes. That enables Bush to claim that Thomas has already been examined and pre-approved by the Senate.

Thomas' nomination may heal a split in the Republican Party. He is a protege of Sen. John C. Danforth (R-Mo.), who gave him his first job in public life. Danforth is the leader of a group of moderate Republican senators who recently broke with Bush over his refusal to negotiate a compromise on civil rights. Now Danforth has agreed to be Thomas' principal sponsor in the Senate.

The nomination has thrown Democrats on the defensive. Opponents of a court nominee can raise three kinds of issues: character, competence and ideology.

Character is Thomas' strong suit. This is a man who overcame adversity and made it on his own. He made it in the white world. And he did it "the hard way," filmmaker Spike Lee would say. He is married to a white woman.

The problem is that good character is supposed to be a minimum requirement for a position on the Supreme Court--necessary, but not sufficient. Conservatives hope that admiration for Thomas' character will overwhelm all other considerations. That's a risky strategy. The press is certain to go after rumors about his past.

Still, warned Orrin G. Hatch (R-Utah): "Anybody who takes him on in the area of civil rights is taking on the grandson of a sharecropper." But what has that to do with civil rights?

Opponents know they will have to criticize Thomas' positions without assailing him personally. They cannot call him an Uncle Tom. He didn't move up in the world by being subservient to whites. But he is not a Colin Powell, either. At least part of his success is due to his politics. It wasn't hard for a black conservative to find opportunities in the Republican Party.

Thomas' competence is more of an issue. He has no record of distinction as a jurist or legal scholar. In fact, he was given only a "qualified" ranking by the American Bar Assn. when Bush appointed him to the appeals court.

Thomas' record as chairman of the EEOC is highly controversial, however. He was criticized for what some groups called a "dismal" record of enforcing anti-discrimination laws. Two years ago, 16 prominent House liberals charged that Thomas "demonstrated overall disdain for the rule of law" in his stewardship of the agency.

Bush's claim that Thomas is "the best man for the job on the merits" is a little inflated. These days, however, you don't have to be the best man, or woman, to get the job. You simply have to pass a minimum test of competence.

As Nina Totenberg observed recently on National Public Radio, "Thurgood Marshall is the last member of the court who had been a real force in American life before he went on the court." Just 25 years ago, the court included Earl Warren, a former three-term California governor and vice presidential nominee; Hugo L. Black, an influential former U.S. senator; Robert H. Jackson, a former judge at the Nuremberg trials; Tom C. Clark, a former U.S. attorney general; William O. Douglas, a legal architect of the New Deal; and Felix Frankfurter, a renowned legal scholar.

Today, Totenberg said, "the highest position ever attained by any sitting justice other than lower-court judge is Byron R. White's job as deputy attorney general in the Kennedy Administration." Most of the justices were chosen because of their ideological inclinations. They are perfectly capable of throwing society into chaos for the sake of a legal doctrine.

Which is why ideology has become an important issue. Robert H. Bork was rejected in 1987 because he was too extreme. People feared that he would use the court to advance a radical agenda. Can the same thing be said about Thomas?

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