The Thomas nomination: debating the wrong issues On Politics Today

Jack W. Germond & Jules Witcover

July 16, 1991|By Jack W. Germond & Jules Witcover

WASHINGTON — THE STRIKING thing about the debate over the nomination of Clarence Thomas for the Supreme Court is that it seems to have so little relevance to the duties President Bush's nominee would be required to perform -- perhaps for the next 30 or 40 years - once he is confirmed.

Instead, the dialogue is all focused on narrow political considerations. That applies both to the reasons Bush chose Thomas in the first place and to most of the opposition to Senate confirmation that has developed.

In theory, nominees for the Supreme Court are supposed to be examined principally on their qualifications rather than their opinions. Using that standard, the Senate Judiciary Committee would be expected to inquire into Thomas' resume as a lawyer and judge, his view of the Constitution, his legal scholarship, his judicial temperament, his commitment to legal ethics and his personal qualities.

Such standards have been used to find other nominees wanting in the past. Clement F. Haynsworth Jr., a federal appeals court judge with an excellent record nominated by President Richard M. Nixon in 1969, was refused confirmation by the Senate 55-45 because an examination of his resume by the press uncovered (( what appeared to be a conflict of interest. Then Nixon's replacement nominee, G. Harrold Carswell, was defeated 51-45 after it was discovered that he had made a racist speech -- that is, one in which he rejected the prevailing national ethic on race. Although there clearly were many factors operating, Robert Bork probably was rejected because his performance at the confirmation hearings raised questions about his judicial temperament. And Douglas Ginsburg had to be dropped because he had violated community standards by using marijuana not just as a student but as a law professor.

But the debate on Thomas centers almost entirely on his views on two issues -- affirmative action and abortion rights. The question of whether this 43-year-old lawyer, a Senate staff member a decade ago, is qualified because of his record as a lawyer or jurist is getting little or no attention.

In the first instance, this focus is an inevitable product of the reasons President Bush chose Thomas in the first place. He obviously wanted someone who shares his hard-line opposition to abortion rights and affirmative action. And because he was choosing a replacement for Thurgood Marshall, he felt some pressure to choose a black. So Thomas was a gift from heaven, matter how flimsy his credentials in the law. Who better than "the grandson of a sharecropper" to make the political statements Bush wanted to make? The president may continue to insist race was not a factor in the choice but it clearly was not just a factor but the critical one.

The developing opposition is also following a political agenda based primarily on issues likely to be before the court in the near future rather than on whether Thomas is the right nominee to spend 30 or 40 years ruling on a myriad of questions. Those who support abortion rights hope, probably without any justification, that there still may be some slim chance there is not already a majority on the court to overturn Roe vs. Wade. Liberals who support traditional remedies for racial discrimination see Thomas a menacing obstacle.

But questions on whether Clarence Thomas has the intelligence or experience or temperament for the judiciary are apparently irrelevant to the debate. And they have hardly been answered by his 15 months of service on the U.S. Court of Appeals for the District of Columbia. He has, after all, written only 19 opinions, not the kind of mother lode needed to provide insight into his judicial thinking or temperament.

The president justifies the choice as he justified his attacks on Michael Dukakis in the 1988 campaign -- that is, as an expression of "values." But the "values" Bush espouses are by no means universally shared by Americans who differ with him on such things as support for the death penalty. Nor do those values necessarily have anything to do with the Supreme Court.

The Senate process has many weeks to run, and chances are that Thomas will be confirmed if there are no startling disclosures from his past and if he conducts himself with reasonable skill and equanimity during the committee hearings. But it is far from clear now that the Senate ever will confront the essential questions about the qualifications of a justice of the Supreme Court.

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