Both sides say of Thomas: 'It's his to lose'

September 08, 1991|By Lyle Denniston and Arch Parsons | Lyle Denniston and Arch Parsons,Washington Bureau of The Sun

WASHINGTON -- Judge Clarence Thomas, carrying with him what even his most vigorous opponents concede is a political advantage, sits down on Tuesday in front of America -- and a Senate committee -- to be tested as a nominee to the Supreme Court.

The nationally televised hearings of the Senate Judiciary Committee could be a severe test; Judge Thomas' opponents say they have the ammunition for that -- provided senators will use it. The challengers' aim: to show, by what Judge Thomas has said and written, that he is and will remain a constitutional radical -- unless he now thoroughly repudiates his own views.

But, in the face of that strategy, there appears to be quite a wide agreement that if the 43-year-old federal judge does even modestly well in explaining himself during three or four days of testimony, he will be on his way to the Supreme Court within a fairly short time.

A view expressed often these days and in the same words, even from his challengers, is, "It's his to lose." He has enough of an advantage going into this week's hearings, it is commonly suggested, to win Senate approval unless he gives it away by a seriously unsettling performance.

The core of that advantage, as seen here by political analysts, is the poignant personal life story that he will be able to fall back on, should the going get hard. If he finds some way, even if it is awkward, to avoid giving support to the image of a radical, his political advantage supposedly will buttress him. His adversaries say they are sure he has been coached to find ways to bring up his past. That past is focused vividly upon humble, painfully deprived beginnings as a poor black boy in racist Georgia four decades ago.

That is the way he has been defined, over and over again, by nearly every one of Judge Thomas' significant backers, from President Bush and the White House staff on down. And his backers suggest that it is a story that no one is going to be allowed to put aside, let alone forget.

The assessment of his handlers can be summed up simply: The repeated complaint against Judge Thomas is that his legal philosophy and his public record show he will be hostile to the rights of blacks and others disadvantaged in society -- including women -- but that complaint will be difficult to put over in the light of his personal background.

Labor Secretary Lynn Martin, for example, has said: "Clarence Thomas understands: He knows the inequities, the indignities, the insensitivity. . . . Does he understand what it is like to start off life at an immediate disadvantage? Does he understand what it is like to have to fight for a place at the table?"

Up against that, his challengers hope senators will place greater emphasis on what Judge Thomas has said and written as one of the country's most conservative and outspoken black figures, and on the threat his views supposedly raise to modern Supreme Court rulings in favor of the rights of blacks and women.

Past can also hurt

As one opposition leader, who asked not to be identified, put it: "There's an awful lot of material that can be the basis for questioning. I would be most surprised if the hearings turned into a pat-a-cake game." Another strategist asks: "How he is going to handle the things he has said? Is there a way he can answer, consistent with his past statements, that doesn't cause concern?"

There are some opponents who are very optimistic about the challenge. One, speaking on condition of anonymity, said, "He is either going to have to run from his record, or have a 'confirmation conversion.' I think that will be too hard a job. . . . We have a very good chance [of defeating him]."

The two areas that many challengers most want Judge Thomas to discuss are the right of privacy -- a general sort of unwritten right that can be the basis for creating a variety of other specific rights -- and abortion -- one of those rights. He has strongly criticized both.

The opposition wants him tested on those issues in view of his fervent embrace of "natural law" theory -- a theory that, critics say, Judge Thomas has used in ways that exhibit a deep hostility to privacy as any kind of constitutional right.

Natural law theoreticians believe that people have rights that come from God merely because they are human beings, and those rights exist, if at all, outside the Constitution.

His natural-law views, anti-Thomas strategists suggest, will be a more significant focus of the Senate hearings than will questions of race -- even more significant than Judge Thomas well-known opposition to programs that give blacks, minorities or women special advantages to cure past race and sex bias. Democratic senators, in particular, seem reluctant to press the "affirmative action" issue very far, and his opponents will not demand that.

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