Keeping Hope Alive


October 18, 1991|By ERNEST B. FURGURSON | ERNEST B. FURGURSON,Ernest B. Furgurson is associate editor of The Sun.

WASHINGTON — Washington. -- Now that the much-maligned ''process'' is over, we can return to what kind of Supreme Court justice Clarence Thomas will be from the 1990s forward, instead of what kind of Reagan-administration official he was in the 1980s.

dTC It is easy to forget that 45 of the 48 Senate votes against his confirmation were based on his political record and his unconvincing effort to disown it -- on his history as a conservative ideologue, before the nation ever heard of any sexual-harassment charges. Neither Mr. Thomas' stonewalling nor last weekend's Judiciary Committee soap opera changed that history.

Those who didn't like his record but didn't feel strongly enough to fight about it fell back on the old truism that once confirmed, justices often surprise those who appointed them. Some turn out far better or worse, more liberal or conservative than even their closest friends could predict.

The popular citation is Earl Warren, picked by Dwight Eisenhower after a routinely conservative career as Republican governor of California and 1948 vice-presidential candidate. As chief justice, he presided over landmark decisions like Brown v. Board of Education, which outlawed public-school segregation. Ike later said Warren's nomination was the greatest mistake he ever made.

But because emotions are so high and the subject up front is race, the most pertinent example may be Hugo Black, who became a great liberal justice after earlier membership in the Ku Klux Klan.

That background might have doomed Black's nomination after he was chosen by Franklin Roosevelt in 1937 -- except that it was never an issue until after his confirmation hearing. What that says about how the advise-and-consent function of Congress has changed in a half-century is for another dissertation.

Black joined the Klan at a time when broad swaths of America thought it respectable. There is a photograph in the archives of a mass parade of hooded Klansmen down Pennsylvania Avenue in Washington in 1925, with tourists and government workers looking on as if it were the Shriners in town for a good time.

In fact, for many provincial politicians, the Klan was just another fraternal club for the resume. Black was already chancellor of the Alabama Knights of Pythias, a Mason, an Odd Fellow, a Moose, a Pretorian and a member of Civitan and the American Legion. When he joined Robert E. Lee Klan No. 1 in Birmingham in 1923, there were some 85,000 Klansmen in Alabama; the state's assistant attorney general was Grand Dragon. An ambitious politician didn't have to be a member, but it helped.

At the time, the Klan was known as much for its populism as for its racism. And so Black joined, went to a few meetings, then resigned in a friendly way in 1925. The next year, as a candidate for the U.S. Senate, he spoke to the state KKK convention, and said that what he liked was not the Klan's burning crosses, but how it kept hope open for ''the boy that comes up on the humble hillside.'' (''Keep hope alive'' -- Jesse Jackson might understand.)

In the Senate, Black opposed anti-lynching legislation, but also opposed violence against blacks. He supported Al Smith, a Catholic, for president in 1928. In Black's 1932 re-election campaign, the Klan story was thoroughly aired in Alabama. When FDR came in, his efforts to help the poor won Black's strong support, and in 1937 Roosevelt picked him to liberalize a court that had struck down a series of New Deal measures.

The Klan itself, furious that a turncoat had risen so high, fed its old records on Black to a Pittsburgh reporter, and claimed that an unsolicited honorary ''gold card'' issued to the justice meant he was still a member. Black admitted that he had been one more than a decade before, and the press exploded. The NAACP, among many others, demanded that he resign.

But once sworn in, Black was beyond reach of public opinion, just as Clarence Thomas will be next week. It took years for him to win the trust and then the high praise of blacks and others offended by his nomination. He is the premier instance of a justice's outgrowing his past.

Many hope that Mr. Thomas' ideological outpourings of earlier years were just cynical political expediency, like Black's joining the Klan. They hope that on the court, he will think of Pin Point, Georgia, more than of the White House before he makes a decision. They wonder whether his confrontation with the Judiciary Committee makes that less likely. And if they are realistic, they remember that for every Black and Warren who has changed once on the court, there is more than one Rehnquist, Scalia or Marshall, who didn't change at all.

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