Washington -- LAST FALL, when President Bush nominated David Souter to the Supreme Court, word was passed that another candidate, Clarence Thomas, was not chosen because he did not have enough experience on the bench. Bush had appointed him only a few months earlier to a federal appellate court after a career as a Capitol Hill aide and bureaucrat.
But the president, in naming Thomas to fill the vacancy caused by the retirement of Thurgood Marshall, has now cited Thomas' judicial experience -- less than a year later -- as a reason Thomas after some "seasoning" was now the best-qualified person available. At the same time, Bush has emphatically denied that the fact that Thomas like Marshall is black had anything at all to do with the choice.
That may be so, but there will be millions of Americans -- black, white, brown and yellow -- who will have trouble swallowing that denial. In the purest political terms, the fact that Thomas is black makes it extremely difficult for Bush's liberal critics to wage an effective fight against the confirmation of a man who is also a died-in-the-wool conservative, thus cementing the conservative hold on the high court.
Despite the warning of Dr. Benjamin Hooks, executive director of the NAACP, that Thomas' nomination would trigger a world-class fight against his confirmation, Bush has good reason to feel confident that the fact Thomas is black will undercut efforts to reject him by liberals still hoping to salvage some bridgehead on a court that clearly has moved farther to the right.
Thomas' nomination also serves as a counter to Bush's current problems with a black community that is increasingly disillusioned with him as a result of his recalcitrant stand against pending civil rights legislation in the field of job discrimination. The president's insistence that bills crafted by the Democrats and by a group of Republican senators set racial quotas, in spite of language in both that prohibit quotas, continues to make a veto of civil rights legislation likely for the second straight year.
But Thomas' record as a former chairman of the Equal Employment Opportunity Commission for seven years, in which he strongly opposed hiring quotas and timetables for correcting inequities, is emphatic evidence that the passion for minority causes that marked Marshall's long tenure on the court will leave with him when and if a Justice Thomas fills what now will be regarded -- whether Bush likes it or not -- as "the black seat" on the Supreme Court. The president bristled when a reporter suggested he was making a "quota" appointment to the court, but that is the way it is likely to be perceived.
If the choice of Thomas may diminish somewhat Bush's problems with black voters, however, his decision not to replace Marshall with an individual of Hispanic roots as widely forecast misses a political opportunity among a block of voters of increasing importance to the Republican Party. The appointment the first Hispanic-American to the high court could have been persuasive with many of them in key states like Texas and California who have voted heavily Democratic in the past but have been trending Republican in recent elections.
The basic objective of recent Republican presidents toward the court, however, is undoubtedly advanced by the Thomas
nomination -- putting an emphatic end to its role as the defender of liberal views, especially in the realm of individual and minority rights as opposed to the power of government.
Bush's appointment of Souter went a good distance toward that objective, although it was veiled at the time by Souter's pre-confirmation posture as a jurist of moderate inclinations. At that time, the central concern was whether Souter would tip the court's majority against abortion rights, and he declined to say where he stood.
This time, Thomas wasn't even asked at his Kennebunkport press conference with the president where he stood on the issue, so widely is it assumed now that the court already is aligned against the pro-choice position. Thomas too says he won't discuss his views on anything until he appears before the Senate. But, unlike Souter, Thomas seems on the basis of his record to leave little doubt that he will be a down-the-line conservative, which is what Bush obviously wanted. The fact that Thomas is black just makes it harder for frustrated liberals to mount an effective opposition to him.