Thomas will win or lose on image as a moderate

September 23, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Judge Clarence Thomas' nomination to the Supreme Court will be put to a vote soon in the Senate Judiciary Committee with the outcome hinging on whether 14 senators believe his self-portrait: the image he sketched of a moderate, centrist justice.

After a summer of being depicted regularly as a radical right-wing thinker with a hostile grievance against much of modern civil rights law, Judge Thomas verbally drew a different image of his own in five days of testimony before that committee.

It was a far less controversial portrait of a future justice, one whowould have "no agenda" to start or who would even give significant support to a sweeping "far right" revolution in the law.

The problem for the senators is that there was almost nothing in Judge Thomas' record before he became a federal appeals judge to suggest that he would be as moderate and cautious as his testimony suggested he would.

Some members of the committee made clear that they had deep doubts that the past and the present could fit together at all, and thus the committee and the full Senate wasleft with the choice of accepting what he said in the witness chair or what he had said in speeches and in writings over the past half-decade.

Those skeptics were Democrats.

Republicans on the committee as a group appear ready to accept Judge Thomas as a Supreme Court justice without proof that he would be more moderate than his past implied he would.

When the committee votes, probably later this week, the nomination would be rejected only if a majority concludes that his moderate self-portrait does not even come close to depicting the kind of justice he would turn out to be. So far, there is no evidence that a majority harbors those doubts about the 43-year-old black judge.

Judge Thomas, insisting that he was presenting to the committee "the real Clarence Thomas," gave many answers that implied clearly that he would be comfortable as a justice taking moderate and sometimes even liberal positions on major constitutional controversies.

Parts of the judicial portrait emerged, line by line, in testimony spread over his five days in the witness chair as senators sought to draw him out. He took a good many positions on issues that he would have to face on the Supreme Court, and many of them -- if actually taken as a justice -- would align him more closely with the more moderate of the court's dominant conservative bloc of justices.

Although he often sought to surround the positions with qualifications so that he would not feel bound by them as a justice, his answers did portray him as considerably less conservative than Justice Antonin Scalia. Justice Scalia is widely acknowledged to be the court's most conservative member and the one most ready to overrule a string of rights decisions -- including Roe vs. Wade.

If Judge Thomas does join the court, he is likely to be drawn quickly into an internal dispute there over casting aside, or retaining, a possibly long list of modern precedents, particularly ones dealing with individual rights.

A constant theme of Judge Thomas' answers, when asked about that ongoing conflict, was that he would hesitate long before voting to overthrow a lot of prior rulings, even when there clearly was a majority of votes available to do so.

He spoke approvingly of a recent dissent by Justice Thurgood Marshall, whom he would succeed, against overruling precedents "simply because you have the votes." That, the nominee added, "is not a basis for doing it."

A moment later, when asked pointedly if he agreed with the Marshall opinion, he retreated, saying that "I was certainly affected by it." But then he volunteered that judges "should guard against making decisions as judges based on the number of votes we have" on one side.

When Sen. Patrick J. Leahy, D-Vt., took him through a series of steps that a justice might take before casting aside a precedent, fTC Judge Thomas went along, agreeing with each step. Along the way, he declared -- clearly and repeatedly -- that rulings should not be overturned just because a judge was convinced they were wrong.

Sometimes when he talked about specific constitutional controversies, the answers he gave were fairly bright outlines of a moderate justice.

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