Playing Games With the Court : With the Thomas Nomination, Bush Has Left the Democrats With Few Moves

George Bush has done it again. Last year, when he nominated David H. Souter to the Supreme Court, he found the only 50-year-old Harvard graduate in the country who had no known views on abortion. Now he has come up with Clarence Thomas to replace Justice Thurgood Marshall. Bush could hardly have designed a more politically clever choice.

Thomas is black. He is a conservative Republican. He was raised a Catholic and educated in Catholic schools and spent a year in a seminary considering whether to enter the priesthood. The President said he saw no need to ask him any “litmus test” questions about abortion.

As for breadth of experience, Thomas grew up in Pin Point, Ga, where he was raised by his grandparents under conditions of oppressive poverty and racism. He was the first member of his family to go to college, then to Yale Law School.

Thomas served for eight years as chairman of the Equal Employment Opportunity Commission, where he was an ardent critic of quotas--exactly the position Bush has claimed in the civil-rights debate. Last year, the Senate confirmed the President’s nomination of Thomas for a seat on the federal appeals court with only two dissenting votes. That enables Bush to claim that Thomas has already been examined and pre-approved by the Senate.

Thomas’ nomination may heal a split in the Republican Party. He is a protege of Sen. John C. Danforth (R-Mo.), who gave him his first job in public life. Danforth is the leader of a group of moderate Republican senators who recently broke with Bush over his refusal to negotiate a compromise on civil rights. Now Danforth has agreed to be Thomas’ principal sponsor in the Senate.

The nomination has thrown Democrats on the defensive. Opponents of a court nominee can raise three kinds of issues: character, competence and ideology.

Character is Thomas’ strong suit. This is a man who overcame adversity and made it on his own. He made it in the white world. And he did it “the hard way,” filmmaker Spike Lee would say. He is married to a white woman.

The problem is that good character is supposed to be a minimum requirement for a position on the Supreme Court--necessary, but not sufficient. Conservatives hope that admiration for Thomas’ character will overwhelm all other considerations. That’s a risky strategy. The press is certain to go after rumors about his past.

Still, warned Orrin G. Hatch (R-Utah): “Anybody who takes him on in the area of civil rights is taking on the grandson of a sharecropper.” But what has that to do with civil rights?

Opponents know they will have to criticize Thomas’ positions without assailing him personally. They cannot call him an Uncle Tom. He didn’t move up in the world by being subservient to whites. But he is not a Colin Powell, either. At least part of his success is due to his politics. It wasn’t hard for a black conservative to find opportunities in the Republican Party.

Thomas’ competence is more of an issue. He has no record of distinction as a jurist or legal scholar. In fact, he was given only a “qualified” ranking by the American Bar Assn. when Bush appointed him to the appeals court.

Thomas’ record as chairman of the EEOC is highly controversial, however. He was criticized for what some groups called a “dismal” record of enforcing anti-discrimination laws. Two years ago, 16 prominent House liberals charged that Thomas “demonstrated overall disdain for the rule of law” in his stewardship of the agency.

Bush’s claim that Thomas is “the best man for the job on the merits” is a little inflated. These days, however, you don’t have to be the best man, or woman, to get the job. You simply have to pass a minimum test of competence.

As Nina Totenberg observed recently on National Public Radio, “Thurgood Marshall is the last member of the court who had been a real force in American life before he went on the court.” Just 25 years ago, the court included Earl Warren, a former three-term California governor and vice presidential nominee; Hugo L. Black, an influential former U.S. senator; Robert H. Jackson, a former judge at the Nuremberg trials; Tom C. Clark, a former U.S. attorney general; William O. Douglas, a legal architect of the New Deal; and Felix Frankfurter, a renowned legal scholar.

Today, Totenberg said, “the highest position ever attained by any sitting justice other than lower-court judge is Byron R. White’s job as deputy attorney general in the Kennedy Administration.” Most of the justices were chosen because of their ideological inclinations. They are perfectly capable of throwing society into chaos for the sake of a legal doctrine.

Which is why ideology has become an important issue. Robert H. Bork was rejected in 1987 because he was too extreme. People feared that he would use the court to advance a radical agenda. Can the same thing be said about Thomas?

During his tenure as chairman of the EEOC, Thomas wrote more than 70 articles and letters opposing affirmative action and attacking race-conscious legal remedies. In a 1987 letter, he wrote, “I emphasize black self-help, as opposed to racial quotas and other race-conscious legal devices that only further and deepen the original problem.”

Conservative, perhaps, but certainly not extremist. Thomas did flirt with danger when, in a 1987 law review article, he criticized the legal reasoning behind the court’s landmark 1954 school desegregation decision. But he did not oppose the ruling itself.

Thomas has repeatedly attacked civil-rights leaders. All they do, he said in an interview, is “bitch, bitch, bitch, moan and whine.” He wrote in a 1985 Los Angeles Times article, “Most blacks are not represented by black politicians. Nor are most blacks members of organizations that claim to represent them.”

It was surprising, then, that civil-rights leaders were so muted in their criticism of Thomas’ nomination. Various groups said they had “concerns” about Thomas and would “study the record.” A statement from the Leadership Council on Civil Rights, an umbrella group of 185 civil-rights organizations, said, “We urge the Senate not to rush to judgment.”

Jesse L. Jackson was uncharacteristically subdued. He issued a statement praising Marshall’s “tradition of excellence” and concluded, “Unless Judge Clarence Thomas’ views have changed, he does not represent that tradition.”

Some black leaders probably felt that at least Thomas is “one of us,” a black man who shares their experiences even if he doesn’t share their political values. They may also have concluded that Thomas is probably the best they are likely to get from the Bush Administration. After all, the Administration indicated quite clearly that the runner-up for the nomination was a Latino. The message to civil-rights leaders was clear: Defeat Thomas and you won’t have a black on the court.

It looks like black leaders won’t go to the wall to oppose Thomas. But women’s rights leaders will. Especially after they learned last week that Thomas had once praised an article attacking abortion rights.

The article, published in a conservative magazine in 1987, referred to abortion as “a spurious right born exclusively of judicial supremacy with not a single trace of lawful authority.” The essay compared fetuses to slaves and described legal abortions as a holocaust. In a 1987 speech, Thomas called the article “a splendid example of applying natural law.”

That gives the Judiciary Committee an opening to press him on the subject. Kate Michelman, executive director of the National Abortion Rights Action League, urged them on, saying, “Thomas is not a blank slate. He has a trail that leads to devastating evidence that he holds extreme views on the right to privacy and the right to choose.”

That, too, is a little inflated. One sentence of praise for someone else’s article is not much of a legal doctrine.

The Democrats are going to have a hard time getting Thomas. And they may end up tearing themselves apart in the process. The nomination has the potential of dividing rank-and-file blacks and civil-rights leaders. It could set white liberals against blacks. And it could fracture the alliance between civil-rights and women’s rights groups.

All in all, a brilliant, and perhaps slightly cynical, political move by President Bush.