Thomas offers wider view on private rights As hearings open, court nominee softens his stance

September 11, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Supreme Court nominee Clarence Thomas acted swiftly yesterday to move well away from some of his harshest criticism of modern court rulings on individual rights -- including abortion -- to try to defuse critics' claims that he is a constitutional radical.

Without saying that he had been wrong in the past, Judge Thomas over and over sought to show to the Senate Judiciary Committee that the theory he has often used to assail the Supreme Court bitterly -- his controversial belief in "natural law" -- was never intended for that purpose.

It was, he said repeatedly, only a "political theory" he had toyed with "part time" while looking for an argument to make racial equality more acceptable to conservatives.

The 43-year-old federal judge, opening public defense of his nomination to succeed retiring Justice Thurgood Marshall, testified slightly more than three hours and repeatedly found ways to weave into the hearing poignant references to his impoverished background in then-racist Georgia.

At one point, his voice broke as he recalled watching as "my grandfather was called 'boy.' " At another point, he imitated a rural Southern black dialect as he quoted encouragement his grandfather had given him.

He also lavished more praise than he had before on Justice Marshall and other modern giants of the civil rights movement, saying that as a black he had "benefited greatly from their efforts."

"But for them, there would have been no road to travel," he said.

By the end of the day, however, it was clear that Democratic senators had succeeded -- temporarily at least -- in switching the focus of the committee's review to issues of law and legal philosophy, and away from Judge Thomas' personal story.

The Democrats said that they would "stipulate" that he had risen courageously from his origins, but that the hearings should move on to what Judge Thomas believes and thinks now.

Top-ranking Democrats on the 14-member panel made clear yesterday that they would press him closely on just what he thinks about the idea that there is a "natural law" outside the Constitution, or a kind of "higher law" some of the nominee's past speeches seemed to suggest would be used more to curb rights than to expand them.

Judge Thomas' response, using the same phrasing time after time, amounted to a virtual promise that he would not as a judge use "natural law" to interpret what the Constitution means regarding individuals' rights, including abortion.

He said to committee Chairman Joseph R. Biden Jr., D-Del., "At no point did I or do I believe that the approach of natural law or natural rights has a role in constitutional adjudication."

Within moments after he had said that, a group that opposes his nomination -- the Alliance for Justice -- circulated to reporters a law review article in which Judge Thomas had said flatly that "the higher law background of the American Constitution . . . provides the only firm basis for a just, wise, and constitutional decision."

Throughout the day, his defenders and critics had opposite views of what Judge Thomas had meant.

Sen. John C. Danforth, R-Mo., Judge Thomas' chief Senate sponsor, said afterward that he had heard no "notable contradiction" in the nominee's testimony, but Ralph G. Neas, executive director of a key anti-Thomas coalition, the Leadership Conference on Civil Rights, said, "This is the earliest 'confirmation conversion' we've witnessed. It does raise questions of credibility."

Senators have in their Thomas file a high stack of past speeches, most of them made when the nominee was chairman of the U.S. Equal Employment Opportunity Commission. He used that post as a major public forum for assailing modern court rulings on the rights of minorities and women. No part of that rhetorical deposit drew more questions yesterday than his past references to "natural law" theory.

The nominee used his answers to try to thwart critics.

When Sen. Edward M. Kennedy, D-Mass., questioned him about a 1987 remark in praise of a suggestion by conservative theorist Lewis Lehrman that "natural law" could be used to prove that there was a "right to life" for fetuses -- thus totally barring abortion -- the nominee wound up saying that that article was wrong.

"To the extent it [the article] makes natural law a basis for constitutional adjudication, or a moral code, I disagree," Judge Thomas said, when pressed on the matter. He added that he did not think natural law "can be used to adjudicate the issue" of whether fetuses have a right to life superior to a pregnant woman's rights, as Mr. Lehrman had suggested.

As the large crowd left the ornate Senate Caucus Room, the nominee's supporters and critics both claimed the day.

Mr. Danforth said, "Clarence Thomas has put in perspective his views, meaningfully, and has shown he's not someone who's going to go to the Supreme Court with an agenda. . . . This is what he's been waiting for -- an opportunity to explain."

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