Few see any real chance for change in future confirmations Process most likely will continue to be regarded as a political forum.

October 16, 1991|By Jay Merwin | Jay Merwin,Evening Sun Staff jHC fnB

Groups in favor and groups opposed to Clarence Thomas predict a changed, cleaner confirmation process next time, but only in ways that would favor their respective and widely divergent standards for Supreme Court nominees.

That suggests a future of conflicting litmus tests. As long as the White House and the Senate are controlled by different parties, future Supreme Court nominations may well generate further savage campaigns and accusations of smearing, further avoidance of pointed questions and accusations of evasion or deceit.

Leaders of liberal lobbying groups contend that the White House should learn from the defeat of the Robert Bork nomination in 1987 and the near-sinking of Thomas to nominate more moderate judges in the future. But analysts at conservative think tanks doubt that a conservative president will betray his constituency with a nominee more to the liking of those who sought to defeat Thomas.

Helen Norton, who drafted a critical legal review of Thomas for the Women's Legal Defense Fund, says "the ugliness in this process will lead the president to leave ugly and divisive politics behind." She hopes the president will confer with Senate leaders and maybe even interest groups that might work up lists of acceptable Republican jurists, about the next nomination. Norton said her group would want "someone at the top of the legal profession," who demonstrates a "basic commitment to constitutional protections."

But among such protections, she listed the right to abortion, which is where the prospect of a "moderate" nominee acceptable to a broad spectrum of interests in the process begins to unravel.

"People will disagree about what's right and what's legal," Norton said. "It's likely that we may have many bitter battles ahead of us, but I don't think it's inevitable."

But, in asking a conservative Republican president to nominate someone more acceptable to the Women's Legal Defense Fund and its allies, "you're almost asking Reagan and Bush to apologize for being elected," said Hadley Arkes, a visiting fellow at the conservative Heritage Foundation.

Abortion is a "matter of fundamental import" that now cannot be avoided in the confirmation process, he said, even it means asking how a nominee would rule on the subject. For that reason, "I can't fault the Democrats," for probing Thomas on abortion, he said. "It's become the issue on which they hang their whole jurisprudence."

So if the confirmation process is going to change under a Republican White House and a Democratic Senate, Arkes said, public perceptions about abortion must change.

If the Supreme Court were to curtail the right to certain abortions, such as in late-term, and if it were to shift more of the lawmaking on abortion back to the legislative branch, Arkes said, "then this situation won't be as vexing" in nominations to the Supreme Court. "People may not be looking to the courts so much for this."

Another way to sheath the bare knuckles of the confirmation fight would be for the president to find other ways to exercise more constitutional power over Congress, Arkes said, thereby dousing Senate aspirations to equal partnership in nominations to the Supreme Court.

But Carol Seifert, deputy director of the Alliance for Justice, which opposed Thomas, expects the Senate to expand upon its powers in the process, especially as venomous confirmation hearings draw the public into closer scrutiny of the Supreme Court and its effect on their lives.

She believes future nominees will have trouble giving short answers about their judicial philosophy and refusing to discuss specific cases. "I think we've seen the [Senate Judiciary] committee take a more aggressive role," in the Thomas hearings, she said. Several members criticized Thomas for ducking questions duringhis hearings last month, and other senators cited that as a factor in voting against him.

Next time, Seifert said, "you've got to answer the questions."

She hopes that Supreme Court nominations will eventually become an issue in presidential and senatorial election campaigns.

But her ally in the campaign against Thomas, Arthur Kropp, president of People for the American Way, is less sanguine about future fights. After helping to defeat the Bork nomination, Kropp is feeling rather savaged himself at the moment by White House and Republican portrayals of the liberal groups as plotters and smearers.

"The scapegoat right now seems to be the advocacy organizations," Kropp said. He worries that future confirmation hearings will be closed, that groups such as his won't be allowed to testify, and that their media campaigns may decline in influence.

Worse for him, Republican administrations may now have fashioned such a predominant majority on the Supreme Court that the next conservative nomination may not be worth the battle, Kropp said. "At some point, you just say it doesn't make a difference any more, except to review these issues."

Edwin Meese, who was attorney general during the Ronald Reagan presidency, expects future court nominations will not reach the Senate without special-interest campaigning.

So, even in the future, Meese said, "A nominee has got to be guarded."

All of which may be why Judge Bork said in a hurried interview just before the Senate vote: "I think the process is horrible, and I don't think it's going to change."

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