Thomas calls for caution on changing rulings

September 17, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun Arch Parsons of The Sun's Washington Bureau contributed to this article.

WASHINGTON -- Supreme Court nominee Clarence Thomas told senators yesterday that the court should not start casting aside prior rulings on individuals' rights just because there are five votes -- a majority -- to do so.

Making his final personal plea for Senate approval, Judge Thomas somewhat surprisingly sided with the dissenters in a 6-3 decision recently that put in doubt a string of the court's rights decisions.

The comment, in which the nominee appeared to be embracing the thoughts of Thurgood Marshall -- the liberal justice he was named to replace -- appeared to be an attempt to convince doubting senators that Judge Thomas would not go to the court bent on overturning a variety of key rulings.

Civil rights groups have claimed for two months that Judge Thomas' nomination posed just such a threat.

In other remarks in his fifth and last day before the Senate Judiciary Committee, the conservative jurist repeated often that he would go to the court without "an agenda" and without a

strong personal desire to do away with precedents, even if he disagreed with them.

In an exchange with Sen. Patrick J. Leahy, D-Vt., Judge Thomas brought up a recent impassioned dissent written by Justice Marshall when the court overruled two of its precedents in death penalty cases; the justice complained that the majority was doing so just because conservatives now had the power -- that is, the votes -- to do so.

Justice Marshall challenged a suggestion in the majority opinion saying that a new five-justice majority would be free to overturn a precedent it did not wish to continue obeying, if that prior ruling had been decided by a 5-4 vote over a "spirited" dissent challenging the reasoning of the decision.

Without prompting, Judge Thomas referred to the Marshall opinion and told Senator Leahy that that opinion had carried "a very stern and necessary admonition to everyone, all of us who are judges."

That admonition, Judge Thomas said, was that "you cannot, simply because you have the votes, begin to change rules, to change a precedent." He added, "That's not a basis for doing it."

Moreover, he told the Vermont senator a moment later, he would not cast a vote to overrule a prior case when the reason for doing so was simply his own personal objection to it. "I do not think that it is appropriate to just simply say, as a judge, 'This is the way I feel and that overrides everything else.' "

His final day before the panel was marked by a few tense exchanges with Democratic senators, and the two Democrats on the panel thought most likely to vote against him -- Sens. Edward M. Kennedy of Massachusetts and Howard M. Metzenbaum of Ohio -- lectured him in sharp tones about taking a variety of positions as a witness that differed markedly from things he had said or written in the past.

Senator Kennedy ticked off a string of those comparisons and told the judge that "the vanishing views of Judge Thomas have become a major issue in these hearings." As he finished, he said:

"If nominees can blithely disavow controversial positions taken in the past, nominees can say those positions are merely philosophical musings or policy views or advocacy. . . . I continue to have major concerns about your nomination, about your commitment to the fundamental rights and liberties at the heart of the Constitution and our democracy. This is no time to turn back."

Although those two senators are expected to vote against the nominee when the Judiciary Committee acts, probably later this month, there were no indications yesterday that Judge Thomas had cost himself a majority of the votes in the panel through his testimony over the five-day appearance.

For up to three days this week, a long list of witnesses opposing Judge Thomas for the court will seek to build momentum against him, while a similarly long list of witnesses will seek to justify his nomination.

After his testimony, an ebullient but obviously fatigued Judge Thomas said he was "glad it's over." Asked to appraise his performance, he said only, "It's out of my hands."

The Judiciary Commmittee then received a formal report by an American Bar Association explaining its split 11-2 vote in favor of his nomination. By that vote, the ABA committee found him "qualified" to be a Supreme Court justice.

The ABA panel said its members' "only significant differences" were over the nominee's "professional competence," not over his "integrity" or his "judicial temperament."

A "substantial majority," the panel said, concluded that he was qualified, basing that largely upon his 18-month performance as a federal appeals judge. The majority said that his limited legal experience had been "overcome and outweighed" by his work on a court.

The two dissenting members said they felt that "Judge Thomas' track record in the profession did not demonstrate exceptional or outstanding ability," and said that the ABA should not rely on "the hope or expectation that such ability will be demonstrated in the future."

Yesterday morning, the Organization of Chinese Americans and the National Asian Pacific American Bar Association held a joint news conference in the former group's Washington offices to announce their opposition to the nominee's confirmation.

William C. Hou, chair of the lawyers group's legislative committee, said that "on at least one occasion, Judge Thomas has portrayed Asian Pacific Americans as a minority group whose accomplishments prove that affirmative action is not needed as a remedy for discrimination."

Mr. Hou added that "by embracing the 'model-minority' myth, Thomas fails to recognize the very real difficulties and barriers confronting Asian Pacific Americans."

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