Wait awhile on Clarence Thomas

April 17, 1992

Last year, the Southern Christian Leadership Conference endorsed Clarence Thomas' nomination to be a Supreme Court justice. It was the only civil rights organization to do so. This week, the SCLC board at a meeting in Baltimore voted "no confidence" in Justice Thomas.

Justice Thomas has cast several votes and written an opinion that dismay civil rights supporters. He has agreed with the court's most conservative member, Antonin Scalia, in almost every case. But we think it is a little early to give up on Justice Thomas. It is not unusual for justices to change their philosophies over the years. The court's present liberal leader, Harry Blackmun, voted with the court's leading conservative on almost every case in his first few years on the high bench.

Last week, Justice Thomas split with Justice Scalia on a significant case. It involved a man enticed by the Postal Service and Customs Service to order child pornography from a fake publisher. Inspectors for those two agencies made repeated entreaties to the man over a 26-month period to buy such material. Finally, they got him.

In overturning his conviction, Justice Byron White, a former Justice Department official, said this was a clear case of government going beyond its own guidelines and previous Supreme Court opinions which say you may not "originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Justice Thomas joined in this decision. Justice Scalia dissented.

A potentially new contour of the court may have been foreshadowed in this case. It was only a 5-4 decision. The other dissenters were Justices Sandra Day O'Connor and Anthony Kennedy, both nominated to the court by Ronald Reagan, and Chief Justice William Rehnquist, elevated to that post by President Reagan. The majority also included Justices White (a John Kennedy nominee), Harry Blackmun (Richard Nixon), John Paul Stevens (Gerald Ford) and David Souter (George Bush).

Justice Thomas is also a Bush appointee. Does this mean the Bush appointees are not yet ready for typecasting? That there might be a Bush-Reagan split? We think so. We know that one case in which Justice Thomas comes down on the liberal side of the line does not prove anything. But we also know that neither does one term in which he comes down on the conservative side of the line most of the time prove anything.

Let's all wait awhile before handing down the verdict on Justice Thomas.

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