The Balancing Act

STAN LICHTENSTEIN

August 16, 1991|By STAN LICHTENSTEIN

About Clarence Thomas Yes, he's black, but he's not `D Hispanic or a woman. He's Catholic, but he's not Jewish. He's ''a minority'' -- absurd label -- but his thinking is weighted down by majoritarianism, a serious failing in anyone dealing with constitutional questions.

Yes, he's married, but he and his first wife are divorced and his second wife is white. This may not sit well with the Archie Bunkers and Louis Farrakhans among us.

Yes, he was born poor, but today he's well-heeled and moves in the best circles.

Yes, nuns made him pray in his parochial school, but now a constitutional issue arises: Would he make children pray in public schools?

Yes, he's been designated to succeed the Supreme Court's first black, Thurgood Marshall, but President Bush clearly expects Judge Thomas to erase Justice Marshall's legacy.

In contemplating the high court nomination of Clarence Thomas, that most commonplace of observations leaps to mind: ''Well, nobody's perfect.''

Every practicing politician -- from presidents and governors to senators or other advisers and consenters -- prefers the judicial appointment process to be simple, well-oiled and strategically effective. But open, official talk of ''strategy'' today is a no-no. ''Balance'' is the more acceptable consideration in polite company, but it, too, has its dangers.

Nearly 40 years ago, for example, Maryland Gov. Theodore R. McKeldin, at a 25th anniversary luncheon meeting of the National Conference of Christians and Jews at Washington's Mayflower Hotel, announced that in a few days he was going to appoint ''the first Negro assistant attorney general'' in the state's history and confirmed reports that he ''would make Simon E. Sobeloff, a Jew, the chief judge of the Maryland Court of Appeals.''

With regard to the black appointment, the governor could not be bothered with details. In his remarks to the NCJ delegates, Governor McKeldin casually revealed that he had not ''yet determined what Negro'' he would name to the vacant post. Thus, out of one side of his mouth he declared that a key office holder would be a black Mr. X -- a faceless person identified only by race. Out of the other side of his mouth, he boasted of his fealty to the cardinal principle of his administration, embodied in his first policy statement as governor: that he would never allow considerations of race and religion to influence his appointments.

Seemingly unaware of the glaring self-contradiction, he presented his interracial and interreligious scorecard of appointments, including the Jewish Judge Sobeloff (who, at least, was not a faceless choice), ''the first Negro judge in the state, the first Negro on the Board of Public Welfare,'' plus his action in ending the color bar at Ford's Theater in Baltimore.

Also mentioned was a contingent of four Jews among the six judges he had just named to the traffic court, which gave him the opportunity to lighten things up with a little joke. He had admittedly exceeded quota, but silenced critical advisers with the facetious remark that one of the new judges, Sol Levinson, had given him $5,000 and, ''I may need that again.''

About 15 months earlier, Sen. Paul Douglas of Illinois, at a Judiciary subcommittee hearing, bowed to what he called political ''realities'' and backed President Truman's tri-sectarian appointments policy. The formula called for parceling up the three Illinois federal judgeships among ''a Roman Catholic, a Protestant and a Jew,'' in order that -- in Senator Douglas's words -- ''each major group should feel fully represented.'' Senator Douglas called this ''realism.'' I call it ''cynicism.''

Examples of such cynicism are numerous. Among my favorites are:

* New York City, 1953: The board of education filled the post of associate superintendent of public schools, left vacant by the retirement of Regina C. M. Burke nearly a year earlier. Her logical successor was Florence S. Beaumont, but because Miss Beaumont was a Protestant and Miss Burke a Catholic, a sectarian deadlock on the board stopped the Beaumont appointment dead in its tracks until a deal could be worked out.

A state law creating a new associate superintendency wes passed for the sole purpose of accommodating a Catholic designee to ''balance'' the Protestant. Edmund J. Gannon was named as associate superintendent ''on special assignment.'' This cost taxpayers $16,250 a year.

* New York City, three years later: Liberal Party leaders reportedly urged ''that a person of the Jewish faith be named for at least one vacancy'' of two for the position of surrogate. For several weeks Tammany leader Carmine De Sapio had been consulting ''with various advisers on whether to recommend a Jewish or Italian candidate for one of the two vacancies.'' From my residential perch in Virginia at the time (I'm a New Yorker by birth), I wrote a letter attacking the whole disgraceful procedure as ''only one step removed from openingly stating the race and religion of candidates on the official ballot.''

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