A Conundrum Named Clarence ThomasTim Smart
George Bush didn't get to the White House by being a political naif. He showed that again on July 1 when he picked a black conservative appellate judge, Clarence Thomas, to replace retiring Supreme Court Justice Thurgood Marshall.
It's a move that allows Bush to pursue a shrewd divide-and-embarrass strategy to win confirmation for the 43-year-old Thomas. It will be awkward for liberal Democrats on the Senate Judiciary Committee, who staunchly back the pending civil rights bill and affirmative action, to oppose a black nominee to the high court. "I love the prospect of Ted Kennedy tongue-lashing this black person sitting there below him," says Thomas Jipping, policy director at the conservative Free Congress Foundation.
AGONIZING. The nomination also is apt to split the Democrats. Some may attack Thomas' inexperience, since he sat on the federal appeals court in Washington for just 18 months. But Southerners, eager to satisfy two key constituencies, will gladly vote for a black conservative.
For black political leaders, the choice is even more agonizing. Jesse Jackson was quick to criticize Thomas, an outspoken foe of affirmative action. But National Urban League President John E. Jacob was more equivocal. "Obviously, Judge Thomas is no Thurgood Marshall," he said. "But if he were, this Administration would not have appointed him." One dilemma for Jacobs and others: If Thomas doesn't make it, odds are that Bush would nominate a Southern white female or an Hispanic. Black leaders would then have to take the blame for leaving the court without a black justice.
Thomas is hardly an unknown quantity-as was David H. Souter when Bush picked him for the court last year. Thomas prefers individual rights to group rights. As Equal Employment Opportunity Commission chairman under Reagan and Bush, Thomas steered the agency away from hiring goals for minority groups, instead pursuing individual discrimination cases. The shift won him enemies among civil rights groups.
They led the fight against Thomas at his appeals-court confirmation hearings in 1990. The Judiciary Committee still approved him 13-1. But the stakes are higher now, with Bush and the Democrats locked in combat over civil rights. Still smarting from their Souter defeat, women's groups will pressure liberals to oppose Thomas unless he gives his views on abortion. Pro-choice forces fear that another conservative vote on the Rehnquist court could spell the death knell for Roe vs. Wade, the 1973 abortion-rights ruling. Four justices have already signaled a desire to overturn Roe, and a challenge could come next term.
As a judge, Thomas has handled few constitutional cases. A preliminary review by the liberal Alliance For Justice found Thomas' rulings "do not indicate an overly ideological tilt," yet he's conservative on criminal issues. His inexperience could offer political cover to liberals looking to oppose him.
But the personable Thomas may disarm his detractors. Following Bush's announcement, he fought back tears twice when recalling his poor childhood in rural Georgia, where he was raised by his grandparents and spurred on by nuns at an all-black parochial school. "I could not dare dream that I would ever see the Supreme Court, not to mention be nominated to it," he said. He graduated from Yale law school in 1974, then worked as an assistant attorney general in Missouri and as a lawyer for Monsanto Co. Among his heroes: Malcolm X, who advocated black self-reliance.
SAILING THROUGH. To prevent slipups, the White House has already talked to GOP lobbyist Tom Korologoswho helped Souterabout coaching Thomas. Bush aides want to replicate Souter's masterful performance. During his confirmation hearings, the New Hampshire jurist deftly turned aside probing queriesand sailed right through.
Korologos figures Thomas' Achilles' heel is his youth. Democrats "look at him and realize they are going to be looking at him for 40 more years," he says. That prospect drives them crazy. Democrats haven't had a nominee since the Johnson Administration.
Between them, Bush and Reagan will have filled six of the nine Supreme Court seats if Thomas gets in. Bush may fill more on a court that has already sharply limited death-row appeals and civil rights, and upheld state curbs on abortion rights. Ultimately, the only brake on an ever-more-conservative court will be a Democrat in the White House. That doesn't seem likely soon.