The new justice

July 02, 1991

"Only in America," said Clarence Thomas as he accepted President Bush's nomination yesterday for the U.S. Supreme Court, could a black person who was born in the segregated South come so far in life as he has come.

And indeed that's true. But it is equally true that Thomas came so far as a direct result of the Herculean legal labors of the man he hopes to succeed, Justice Thurgood Marshall, who, as a lawyer, persuaded the Supreme Court to break down the walls which for centuries kept children like Clarence Thomas from realizing their full potential as American citizens.

So there is great irony in the fact that aside from color, Clarence Thomas, on the basis of his record as a Reagan Republican conservative over the past 10 years, more resembles Chief Justice William Rehnquist than Justice Thurgood Marshall.

It is for this reason that it is essential that Thomas' views on settled constitutional issues be explored to the fullest extent as he faces the confirmation process before the Senate.

For starters, a question which might be asked is, would Thomas, as a justice, vote to reverse the 1954 school desegregation decision, Brown vs. Board of Education?

It is, of course, inconceivable that he would say that he would reverse that decision, or even give an ambiguous answer.

But is there any less reason to ask whether he would reverse other major settled decisions? Would he reverse Roe vs. Wade, which nearly 20 years ago established an unlimited right to abortion in early pregnancy? Would he reverse Engel vs. Vitale, which nearly 30 years ago prohibited state-sponsored religious exercises in public schools?

To millions of American women, Roe vs. Wade is no less important than Brown vs. Board of Education is to millions of black Americans. To millions of Americans of religious minorities, the ban on state-sponsored religion is no less important than the ban on segregation.

Under our system, there are two ways to overturn decisions which interpret the Constitution: (1) amend the Constitution and (2) appoint judges who will reverse the decision.

President Bush has proposed amendments to overturn both Roe vs. Wade and Engel vs. Vitale. But the amendment process is long and arduous; only twice in our history have decisions been reversed in that manner.

Does it not follow, then, that if President Bush is truly committed to overturning the abortion decision and the school-prayer decision, he would appoint justices he knows will accomplish that result by overruling the previous decisions?

We know that over the past five days Clarence Thomas has been intensively interviewed by administration operatives. Those interviews were private; no one knows what questions were asked, what commitments were made.

Is it not appropriate for senators to ask, at confirmation hearings, whether Thomas would overrule the abortion decision and the school-prayer decision? Don't people on all sides of these contentious issues deserve to know where a potential justice stands on these major issues, as much as they deserve to know where presidential or congressional candidates stand?

These are legitimate questions; let them be answered in public, rather than signaled through private interviews by bureaucrats.

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