Black Judicial Candidate Stirs Debate : Courts: Clarence Thomas is a rising star in the GOP. But his critics charge his views on discrimination are a cause for concern.


Clarence Thomas is a 41-year-old, Yale-educated lawyer. He is articulate, conservative, a critic of affirmative action--and black.

For all these reasons, Republicans see him as a star in the making. President Bush nominated him last year to a highly visible judgeship: the U.S. Court of Appeals seat in Washington last held by rejected Supreme Court nominee Robert H. Bork.

On Tuesday, the Democratic-controlled Senate Judiciary Committee will consider his nomination. If confirmed, Thomas is seen as a potential successor to Supreme Court Justice Thurgood Marshall, the high court's only black.

In the eyes of some conservatives, the Thomas nomination could mark a historic shift in attitudes about blacks and civil rights.

Marshall, as a lawyer with the National Assn. for the Advancement of Colored People, made his mark in the early days of the civil rights movement by attacking "Jim Crow" laws and winning court victories outlawing legal segregation. Since ascending to the Supreme Court in 1967, he has been the leading proponent of the view that blacks should be compensated for their decades of oppression through preferences in college admissions, jobs and government contracts.

Thomas represents a new generation, one that entered the work force after legal segregation was abolished. In speeches and interviews, he has argued that only individual merit, not race, should count.

"No one should be rewarded or punished because of group characteristics," Thomas has said.

That was, of course, the view put forth by former President Ronald Reagan and his attorney general, Edwin Meese III, but the words can carry a greater weight when they come from a black man who grew up poor in the South, as Thomas did.

In 1982, Reagan picked Thomas, then 33, to be chairman of the Equal Employment Opportunity Commission, the agency charged with enforcing the nation's anti-discrimination laws in the workplace.

As EEOC chief, Thomas displayed a deep skepticism toward traditional, broad-scale civil rights enforcement. He said he wanted to focus on individual instances of bias.

Critics said he was more interested in protecting big business than investigating unfair treatment, especially allegations of age and sex discrimination. On occasion, he was compared to such Reagan appointees as Interior Secretary James G. Watt, Environmental Protection Agency Administrator Ann McGill Burford and Justice Department civil rights chief William Bradford Reynolds, who became notorious in Congress for undermining the laws they were charged with enforcing.

Thomas had his share of spats with Congress, too. In 1988, it was revealed that nearly 9,000 complaints of age discrimination lodged with the EEOC had lapsed because the agency failed to act on them within the required two-year time period. When congressional Democrats complained, Thomas lashed back, charging he was the victim of a "hatchet job."

In the House, 14 committee heads--all Democrats--fired off a letter to the White House charging Thomas "had demonstrated an overall disdain for the rule of law."

But his star did not dim for Republicans.

"From the beginning, President Bush made clear that he wanted Clarence to have an important role in the Administration. The only question was what would be the best role for Clarence," said Murray Dickman, a Justice Department official who coordinates the selection of federal judges for Atty. Gen. Dick Thornburgh. "We view this (the appeals court to which Thomas was nominated) as the second most important court in the land."

As the ideological battles between the Democratic-dominated Congress and the Republican-controlled executive branch have intensified, the U.S. Court of Appeals for the District of Columbia has been called upon increasingly to decide technical, but highly charged disputes over the meaning of federal law and federal regulations.

During the Reagan years, liberal legal activists repeatedly went to court charging Administration officials with failing to enforce the law as written by Congress. The issues ranged from workplace safety and food dyes to "fairness" in broadcasting and the constitutionality of the independent-counsel statute.

Aware of the high stakes, the Reagan White House put many of its most reliably conservative attorneys on the 12-member District of Columbia appeals court, including Judges Antonin Scalia, Douglas H. Ginsburg and Bork, all of three of whom were later nominated to the Supreme Court.

As a result, the Thomas nomination has attracted unusual attention. It has also left Washington's liberal civil rights Establishment in an uneasy spot.

Some activists wanted to fight his confirmation in the Senate and spent months gathering information. They say the record is clear: Based on his actions at the EEOC, Thomas cannot be trusted to fairly enforce the law.

But the leaders of the prominent civil rights organizations, divided among themselves, say they will not take a stand on the nomination.

"At this point, the Leadership Conference (on Civil Rights) has no position," said Ralph Neas, executive director of the coalition of more than 100 civil rights groups.

In the past, these groups have derided Republican administrations for not appointing blacks to high-level legal jobs.

Last year, when Bush nominated as head of the Justice Department's civil rights division William Lucas, a former Wayne County, Mich., sheriff who is black, civil rights lobbyists nonetheless opposed the nomination. They contended Lucas was not qualified for the post, and the Senate Judiciary Committee voted him down.

Thomas is Bush's first black nominee to the federal bench, and no one contends he is unqualified.

Says Patrick McGuigan, an official of the Free Congress Foundation, a conservative group backing the nomination: "Clarence has an awesome legal background: Yale, assistant attorney general in Missouri, aide to (Sen.) John Danforth (R-Mo.), assistant secretary at the Department of Education, and now EEOC. He's done it all."

The American Bar Assn. gave Thomas a less-glowing endorsement. Its 15-member evaluation committee rated Thomas as "qualified," which means "it appears the prospective nominee would be able to perform satisfactorily as a federal judge."

That was one of three possible ratings. A "well-qualified" nominee is one who gets the association's "strong affirmative endorsement . . . as one of the best available for the vacancy," while a "not qualified" nominee is considered "not adequate from the standpoint of integrity, competence or temperament."

Thomas is expected to get some sharp questioning from Judiciary Committee Democrats, but aides and lobbyists said they believe he will be confirmed by a wide margin.

Still smarting over the defeats of Bork and Lucas, committee Republicans are taking no chances with Thomas. They have loudly protested the staff investigation of Thomas as unduly thorough. In a letter signed by Chairman Joseph R. Biden Jr. (D-Del.), the EEOC was asked to turn over detailed files on how Thomas handled various age-discrimination cases. That prompted a Wall Street Journal editorial labeling the committee's investigation as "the next lynching."

Despite such allegations, the President's judicial nominees are rarely rejected by the Senate. During eight years in office, Reagan filled 378 of the 752 judgeships in the three-tiered federal court system. Only three of his nominees were voted down: district court nominee Jefferson B. Sessions III of Alabama in 1986, Supreme Court nominee Bork in 1987 and appeals court nominee Bernard Siegan of San Diego in 1988.

Much information on Thomas' tenure at the EEOC already has been made public and failed to cause much of a stir.

In 1987, the Senate Special Committee on Aging published an 837-page report detailing how Thomas and the EEOC rejected a complaint of widespread age discrimination at the Xerox Corp.

Though the EEOC is charged by law with enforcing the age-discrimination law and prosecuting violators, the agency, at Thomas' urging, voted not to take on the Xerox case. Instead, the employees hired a private lawyer and filed a class-action lawsuit that is still pending.

In a separate suit against Xerox, a federal court jury in Dallas last month awarded more than $9 million in damages to a 46-year-old woman who contended she was discharged because of her age.

Last week, the American Assn. of Retired Persons urged the Judiciary Committee to "thoroughly examine" Thomas' record on enforcing the age-discrimination laws. But the letter stopped short of opposing the nominee.

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