The Senate Judiciary Committee's hearings on Judge Clarence Thomas' nomination to the Supreme Court begin Tuesday. They are expected to last about two weeks. That is a long time, but the Senate rarely makes so important a decision. Lawmakers should take their time.
Senators cannot ask Judge Thomas how he would vote on a specific case, real or hypothetical; no one wants to go before a justice who has testified that he had already made up his mind. But senators can and should ask Judge Thomas about the intellectual approach he would take to decision-making. They should question him about his understanding of the Constitution and previous Supreme Court decisions interpreting it. They should pin him down on his statements that there are natural rights superior to constitutional ones.
There is widespread opposition to the Thomas nomination. lTC Numerous representatives of organizations, especially in the civil rights community, have asked to be heard on why he should not be confirmed. They see in him a pronounced conservatism that refutes numerous civil rights tenets, most notably the notion of affirmative action for members of groups that have been and still are victims of discrimination.
We respect such opposition to the nomination. Nevertheless, we believe opponents should bear in mind that any nominee by this administration will be, on the record, an opponent of many of the goals of the organized civil rights community. So the more pertinent questions for opposing witnesses and senators would include: Are Judge Thomas' views so extreme as to be out of the mainstream? Do they make another conservative more preferable? If either answer -- after the hearings -- is "yes," senators probably should vote "no." Yet barring some unforeseen revelation, the probability is that Judge Thomas will become the next justice.
Assuming that President Bush will select a conservative in any event, it seems to us that liberal senators could better use the hearings as a forum rather than as a cockpit of conflict. One purpose would be to educate the public (and perhaps Judge Thomas, himself) about the real meaning of affirmative action. Judge Thomas, who is black, has been a beneficiary of it all his life -- especially in his nomination to be a Supreme Court justice. He, representatives of the administration and his other supporters should be made to confront the question of why it was proper -- as it was -- for President Bush to have chosen a black nominee over white candidates with superior credentials by the traditional means of comparison: education, experience and scholarship.
Such an inquiry would help a skeptical public understand why this sort of affirmative action is important in other areas of life as well.