Washington -- IF YOU ACCEPT the proposition that the process of confirming Clarence Thomas for the Supreme Court is essentially a political exercise, then it becomes obvious that President Bush seized the high ground by choosing a black nominee.
Democrats on the Senate Judiciary Committee may argue with some validity that Thomas' personal history in struggling up from poverty is not central to the question of whether he is qualified for the highest court. But it would be naive to imagine that experience has not given him a layer of political insulation in the confirmation process. No white liberal is likely to risk going too far with one who, as Republican Sen. Orrin Hatch of Utah noted, grew up "barefoot on the unpaved streets" of the rural south.
The protection Thomas may enjoy is obvious even on the issue that is the core of the organized opposition -- abortion rights. Democratic Sen. Patrick Leahy of Vermont expressed the frustration the liberals have felt in trying to nail down nominees on the abortion question. "Let me make this clear, Judge Thomas," said Leahy, "in recent years we have danced around the question of where nominees stand on a woman's fundamental right to abortion. This is one of the burning social issues of our time . . . and yet the Senate and nation have been frustrated by polite respectful stonewalling."
But Thomas followed precisely that course. "I don't think that at this time I could maintain my impartiality as a member of the judiciary and comment on that specific case," he said of the 1973 Roe vs. Wade decision that legalized abortion. The most he was willing to concede is that there might be a right to privacy implicit in the Constitution.
And Thomas's supporters on the committee have deftly used his race to advantage. If Thomas were forced to answer questions Souter evaded, said Hatch, then Thomas would be held to "a higher standard" than his predecessor. "I think many Americans will be deeply troubled and will want to know why this nominee is being singled out," said the Utah Republican. The implication, of course, was that Thomas was being held to such a higher standard because he was black.
The truth is, of course, that the debate over abortion rights within this confirmation process is essentially a sham battle. The court already includes at least five and probably six conservatives who are ready to restrict abortions and perhaps reverse Roe vs. Wade outright. Whether or not Thomas is confirmed that fight has been lost. And no one imagines that any replacement nominee would be any less opposed to abortion than Thomas.
The White House also holds the political hammer on the second issue on which Thomas has been targeted -- his hostility to affirmative action programs to compensate for past racial discrimination in employment and business practices. Both recent election results and public opinion polls show a broad and deep antipathy to affirmative action, particularly when it is depicted as "reverse discrimination" against whites competing for the same jobs and promotions.
Hatch, Thomas' most artful supporter on the committee, exploited that knowledge when he said he hoped the nominee would not be sacrificed "on the twin altars of preferences and reverse discrimination." Thomas himself has laid a groundwork for neutralizing the issue by acknowledging that he has benefited himself from forms of affirmative action and by taking pains to praise Thurgood Marshall, the black icon he would replace.
The result is that Thomas' examiners are left with the basic questions they could raise about any nominee -- principally whether he is qualified by experience, intelligence and temperament to serve on the court. Thomas may not be a noted legal scholar or a provocative thinker like Robert Bork. But, again, the fact is that his resume, limited though it may be, is not qualitatively much different from that of many justices who have served or are serving on the court, including Chief Justice William Rehnquist.
Thomas still has shoals to negotiate before he is confirmed. But the early going suggests that Bush's choice of a black nominee -- a choice he so piously insisted had nothing to do with race -- was a political master stroke. The leading civil rights organizations have declared themselves against Thomas, but the polls show most black Americans support his confirmation. And the liberal Democrats have been pushed into an awkward corner.