From the Marshall to the Thomas Seat? : Bush nominates black to add to conservative dominance

Except for their race, Clarence Thomas, nominated Monday for the Supreme Court, and Thurgood Marshall, who announced last week that he is stepping down, could hardly be less alike.

Before he went to the high court in 1967, Marshall was a Promethean lawyer of transcendent civil rights causes. When Thomas was nominated last year to the U.S. Court of Appeals for the District of Columbia, civil rights groups across the land complained. An outspoken champion of affirmative action, Marshall worked his way through Howard University Law School during an epoch when affirmative action was unheard of. A fierce contemporary critic of affirmative action, Thomas graduated from Yale Law School and benefited from special programs for minorities.

Now the Marshall seat is set to become the Thomas seat. History can be extraordinary.

ANOTHER CONSERVATIVE: In one sense Thomas, if confirmed by the Senate, changes little. The high court will remain conservative and will continue to have one minority member. Yet the nomination may trigger a fury from liberals and civil rights groups, who may have settled for a third-generation Brahmin if they had known the choice would be Thomas. They argue that with seven of nine of the justices conservative, the court would lack ideological balance. They are right, though it’s hard to recall any liberals arguing for the nomination of a conservative during the Warren Court years.

The truth is that anyone more liberal than this former chairman of the U.S. Equal Employment Opportunity Commission was not in the cards from a President who for eight years served as vice president to Ronald Reagan. What’s more, President Bush, who many had thought would reach out for a Latino, may have made a shrewd political move here. Thomas may get worked over pretty thoroughly during confirmation hearings, but it will be risky for Democrats to flatly oppose the nomination of a black: Supposing they succeed--what then? Will the Democrats want that kind of blood on their hands? Moreover, with this nomination Bush may succeed in isolating traditionally liberal black groups and creating his own version of a new black order (making the point that not all blacks think alike) by spotlighting a smaller, younger group of black conservatives whose views will get more attention nationally than they may actually represent in the broader black community.

THE HARD QUESTIONS: So many will see this nomination as an exercise in pre-1992 politics--as an effort to divide and conquer liberals and Democrats. In many ways Clarence Thomas personifies the American dream. He was born poor and black in the rural and racially segregated South; his grandparents reared him after his father left the family. His emotional pause at his announcement ceremony when reflecting on his youth was a moving moment. It’s worth noting that the case could be made that Thomas himself benefited from the aftereffects of the victories crafted by Marshall. In 1954 he started school in an all-black elementary school in Savannah--the same year the Supreme Court outlawed segregation in public schools. It may be that the very type of special assistance that he now terms “race based” was essential to him as he overcame the handicaps of poverty and racism.

The Senate will want to ask this candidate fair but probing questions to determine the nominee’s degree of commitment to equal protection under the law for all Americans, his temperament and grounding in the law. So let the process proceed. But let us not prejudge, or misjudge. And let the questioning be intelligent, not partisan. The fact that Thomas is black is not necessarily dispositive in the affirmative; the fact that he is a conservative is not necessarily dispositive in the negative. There will be time to ask the hard questions--and listen carefully, and respectfully, to the nominee’s answers.