Split among court's conservatives awaits Thomas

July 03, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- A struggle, not always friendly, is developing within the Supreme Court's strong and controlling bloc of conservatives, and it seems sure to draw in Judge Clarence Thomas if the Senate agrees to let him become a justice.

Among those who know Judge Thomas, or have followed his career as a conservative government policy-maker and federal appeals judge, the early expectation is that he could start making a difference on the court at the very beginning -- by choosing a side in the internal competition that appears to be growing there.

The struggle centers on the court's eagerness, or hesitancy, about overturning past precedents -- in such areas as criminal law, civil rights, women's rights and, especially, abortion.

On one side is Justice Antonin Scalia, sometimes supported by Chief Justice William H. Rehnquist. Justice Scalia shows an increasing eagerness to cast aside previous rulings -- including ones decided very recently by close votes when the

conservatives were not as dominant as they now are -- if he perceives those to have been wrong.

On the other side are Justice Sandra Day O'Connor and, more often these days, Justice Anthony M. Kennedy, with a fairly strong resistance to abandoning precedents altogether and without hesitation. The seeming alliance of Justices O'Connor and Kennedy has lately been drawing the newest justice, David H. Souter, to its side as well.

Even within the O'Connor-Kennedy-Souter grouping there are differences on this issue, with Justice O'Connor tending to feel the tug of precedent more compelling than the other two might -- especially Justice Kennedy.

From time to time, Justice Scalia has demonstrated openly an impatience with Justice O'Connor, in particular, for her hesitancy to help make a majority for a fresh start on major constitutional issues. The institutional restraint on criticizing one's colleagues has been allowed to lapse, from time to time, in this internal competition.

Louis Michael Seidman, a Georgetown University law professor, said yesterday that that competition is now only "in its incipiency" but that, "over time, there are going to be schisms" within the court's conservative justices.

With that division apparently likely to develop further, Judge Thomas, if confirmed to succeed liberal Justice Thurgood Marshall, could hardly avoid making or joining some alliances formed among the conservatives.

A former government colleague of Judge Thomas', who has spent long hours over brown-bag lunches with him, talking law, said he expected that Justice Thomas would be torn between a reluctance to abandon precedent -- especially if Americans had come to depend upon those rulings -- and a belief that decisions that were wrong from the outset should not be left standing.

That former official, who asked not to be identified, said that as a general matter, he did not expect Judge Thomas to feel as bound by past decisions as Justice O'Connor does. But, at the same time, the former colleague said, he would not expect Judge Thomas to try to use free

ly the court's power to bring about a specific constitutional agenda.

"I know Clarence very well, at the personal and professional level," the official remarked. "He does not have an agenda in the same way that one could say Scalia does, or even in the same way that one could say Rehnquist does. If I had to say now, I would say Kennedy is the justice he is likely to be most like."

Gary McDowell, a conservative legal theoretician and former Reagan administration official who now is a visiting scholar at Harvard Law

School, said the conservatives on the court are trying to decide ++ whether to embrace the "nagging loyalty" to past decisions exemplified by Justice O'Connor and, sometimes, by Justice Kennedy, or to follow Justice Scalia in the opposite direction.

Asked about Judge Thomas, Mr. McDowell said, "My sense, if you look at the kind of things he's said, is that he is probably trusted by the [Bush] administration to reflect the kind of constitutionalism of Rehnquist and Scalia: that the perpetuation of wrongs doesn't make a right, and that, with a court of last resort, the obligation is to get it right."

Both Mr. McDowell and Judge Thomas' former associate in government appeared to agree that the new Supreme Court nominee has a strong devotion to the idea that there should be less government in people's lives in general and that that may well shape his views about the use of judicial power to create or protect civil rights.

"There is a strong libertarian strain in Clarence's thinking, one that would surprise a lot of people," said his friend and former associate.

Mr. McDowell added: "I would rather think his agenda might be the resuscitation of a regard for constitutional and legal limits on judicial power, of getting judges out of the business of meddling."

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