Thomas’ Critics Still Seek the ‘Smoking Gun’

When the Senate Judiciary Committee asked U.S. Supreme Court nominee Clarence Thomas to fill out its standard questionnaire, it got more than it bargained for--16,000 pages in all. Thomas supplied the panel with hundreds of speeches, newspaper articles, court opinions and documents from his years as a federal official during the Ronald Reagan Administration.

For weeks, Senate staffers have been wading through the thick file, uncovering tidbits about Thomas, the man. He is a dedicated weightlifter at the Ironworks Gym in suburban Alexandria, Va. He also belongs to the International Churchill Society, which studies the life of the former British prime minister.

Despite the plethora of documents, the speeches and papers have not produced what Thomas’ opponents are seeking most fervently--the proverbial “smoking gun” that could doom his nomination. Indeed, two months after the nomination of Thomas to the Supreme Court, opponents have little to use to scuttle his nomination other than his apparent distaste for affirmative action programs and what critics believe are his anti-abortion views.

As a result, most Senate aides and legal activists believe that the 43-year-old jurist will be easily confirmed to the high court, despite protests by liberals. The Senate Judiciary Committee is slated to open hearings on his nomination Tuesday. The Administration hopes to be able to push the appointment through before the high court begins its session the first Monday in October.

The documents that Thomas has submitted portray a young man who is a provocative and unconventional thinker--and may prove a surprise on the Supreme Court.

Having grown up poor and black in the segregated South of the 1950s, Thomas rejects both the standard liberal and conservative views concerning race and American law. He dismisses as patronizing former Chief Justice Earl Warren’s view that segregated schools harmed “the hearts and minds” of black children. But he also refuses to forgive conservatives who believed that the Constitution allowed official racial segregation.

Instead, Thomas believes that since the time of the Declaration of Independence, American law has viewed all people as equal. By that reckoning, the Brown vs. Board of Education ruling in 1954 did not make a grand, new statement, but simply corrected a nearly 200-year-old mistake.

In other speeches, Thomas blames “lazy businesses” for adopting “racial-preference schemes,” lambastes Congress for “micromanaging” the government and faults Republicans for not devising a “positive” civil rights program.

Such a mixture poses a combination that even liberal Democrats concede is hard to oppose. “If you can find a way to beat this guy,” a key Democratic aide joked, “give us a call.”

Still, the thick file of documents seems likely to give senators a wealth of material about which to question Thomas. They are expected to hone in on subjects such as privacy, abortion, religion, free speech and the power of the President versus that of Congress. The nominee is scheduled to testify for about four days.

Thomas’ views on the abortion issue are often fuzzy and likely to prove the most politically explosive. Although he advocates “limited government” that leaves most matters to individuals, he denounces the then-liberal court for having “invented” a right to privacy, which keeps government out of individual decisions involving contraceptives and abortion.

In his most controversial statement--a 1987 speech at the Heritage Foundation in Washington--Thomas praised conservative philosopher and philanthropist Lewis E. Lehrman for an article that mocked the Roe vs. Wade ruling and called abortion “a holocaust.” Both the Declaration of Independence and the Constitution give a fetus “an inalienable right to life,” Lehrman maintained. With Lehrman in the audience, Thomas praised his article as “a splendid example of applying natural law.”

In July, Sen. John C. Danforth (R-Mo.), Thomas’ prime sponsor in the Senate, dismissed the nominee’s comment as “a throwaway line”--designed more to be a courtesy to Lehrman than a considered endorsement of his anti-abortion philosophy. But Senate Democrats are certain to ask Thomas about the statement this week.

No member of the Supreme Court has endorsed the notion that the Constitution creates a “right to life” for fetuses. Conservatives, such as Chief Justice William H. Rehnquist, say the abortion issue should be decided by the state legislatures. If Lehrman’s view were the law, abortion would be illegal everywhere, regardless of whether the majority of the people or their legislators supported the right to choose it.

Thomas’ views on race-related issues also are likely to spark questions. On one hand, he bluntly faults conservatives for ignoring “the totalitarianism of segregation” in the 1950s and for opposing the Civil Rights Act of 1964. Although the nominee does not name names, President Bush, Reagan, Robert H. Bork and Rehnquist all spoke critically of the landmark federal civil rights law before its enactment in 1964. A decade earlier, Rehnquist, a 27-year-old Supreme Court law clerk, defended the “separate but equal” doctrine, the pillar of Southern segregation, and urged that it be “reaffirmed.”

At the same time, Thomas also criticizes the underlying philosophy behind Warren’s opinion in the Brown vs. Board of Education case. Warren had argued that the Constitution and American history did not say whether enforced racial segregation was illegal, but the “modern authority” of social science showed it to be harmful to young blacks.

Thomas derides the 1954 court for relying on the “vagaries of social science” and the “latest social psychology discoveries concerning race relations.” Instead, he says, the Supreme Court should have announced that it had been wrong all along. The Declaration of Independence and the 14th Amendment to the Constitution set forth the “higher law” principle that all persons deserve equal treatment, Thomas said.

“At its best moments, the civil rights movement (of the 1960s) acknowledged this higher law understanding,” Thomas said. “By speaking to the best in the American tradition, Dr. Martin Luther King Jr. was able to forge a national consensus on the need to establish civil rights protection.”

Thomas contends the civil rights movement ran off track in the 1970s when it switched from “protecting individual rights” to “advancing certain groups’ interests.”

Thomas’ pronouncements on natural law, the right to privacy--and, by implication, abortion--are decidedly less defined. While on one hand, he stresses “individual liberty” and “limited government” as fundamental principles of American law, he also faults “run-amok judges” on the Supreme Court for the “invention” of a right to privacy in the Constitution.

Erwin Chemerinsky, a University of Southern California law professor who has written an analysis of Thomas’ natural law views, contends Thomas’ statements are often contradictory. “He talks in slogans,” Chemerinsky said. “I think his views aren’t well thought out.”

Nevertheless, abortion-rights advocates are convinced that Thomas, if confirmed, will vote to overturn Roe vs. Wade. “The Clarence Thomas nomination could be the final step in a decade-long effort to overturn Roe,” said Kate Michelman, executive director of the National Abortion Rights Action League. “If confirmed, he could be the most extreme anti-choice member of the court.”

In recent confirmation hearings, Republican nominees have refused to divulge their views on abortion or the Roe ruling. As a fallback position, Senate Democrats have concentrated their questions on the right to privacy.

In the 1965 case of Griswold vs. Connecticut, the court struck down a state law forbidding the sale of contraceptives and declared that the Constitution creates “a zone of privacy” for individuals to make such personal decisions. Eight years later, the court used that ruling as a springboard to declare that the Constitution also protects a woman’s right to choose abortion.

The privacy issue can prove a fatal trap to candidates for the high court. In 1987, in a statement that perhaps more than any other led to his defeat as a Supreme Court nominee, Bork told senators that he thought the Griswold decision was wrong and that the “right to privacy” was a fiction.

Learning from that experience, the next two nominees, Anthony M. Kennedy and David H. Souter, endorsed the right to privacy and the Griswold decision. Both were easily confirmed by the Senate, although both have since voted with the conservative majority to restrict the right to abortion.

But Thomas may have more difficulty than Kennedy or Souter because he has explicitly repudiated the Griswold decision as unwarranted. “He has created a problem for himself,” a Senate aide said. If he speaks out against the Griswold decision, committee Democrats will say that Thomas would permit police to “invade the marital bedroom”--a line that earlier was used against Bork. However, if Thomas endorses the right to privacy, he will be accused of a “confirmation conversion”--another tag that was applied to Bork.

There also are other issues that Thomas has raised about which the senators are sure to ask questions:

* Endorsing the concept of “economic rights.” Until 1937, the Supreme Court often struck down statutes, such as minimum-wage laws, because they were said to violate economic or property rights. Since then, the court has seen its duty as protecting civil rights and individual liberties, not economic or property rights.

“What we need to emphasize is that the entire Constitution is a Bill of Rights, and economic rights are protected as much as any other rights,” Thomas said. The Rehnquist court, although conservative, has refused to strike down rent control or zoning laws, even though they restrict property rights.

* Siding with the executive branch in its disputes with Congress. For a decade, the Democrat-controlled Congress has faulted the Republican-led executive branch for failing to follow the law. Meanwhile, Republicans have criticized congressional Democrats for meddling in the affairs of the bureaucracy. Thomas repeatedly has voiced the Republican complaints about Congress. “As Ollie North made clear last summer, it is Congress that is out of control,” he said in 1988. He also blasted the Rehnquist court for having upheld as constitutional the independent counsel who investigated top officials of the Reagan Administration.

* Disputing conservatives’ reliance on the “original intent” of the Constitution. Bork and former Atty. Gen. Edwin Meese III said the court should be guided by the intent of the authors of the Constitution of 1787 and should not create “new rights.” Thomas called this doctrine “a rather legalistic notion” that has little appeal and ignores the fact that the authors of the document believed that all men had “inalienable rights.”

* Endorsing the importance of religion. “My mother says that when they took God out of schools, the schools went to hell,” Thomas said in 1985. “She may be right.” He also has referred to natural law as “God’s law.” While Thomas has written little on religion and the First Amendment, the issue will be considered by the Rehnquist court. Only two members of the court still support the “separation of church and state” doctrine. The chief justice is pushing to give religion a greater role in public life, including a possible return to prayer in the public schools.

So far, the Judiciary Committee Democrats have been unusually quiet on the Thomas nomination. Committee Chairman Joseph R. Biden Jr. (D-Del.), Edward M. Kennedy (D-Mass.) and Paul Simon (D-Ill.), three liberals who led the opposition to Bork, have said they are undecided on Thomas.

Most staffers and legal activists expect a polished performance from Thomas. He appeared before congressional committees some 50 times during his years as a Reagan Administration official. Just last year, the Senate confirmed his nomination to a judgeship on the federal appeals court--after a low-key hearing.

But liberal activists have not given up. Some have said Thomas has a “short fuse.” He also may have difficulty defending his performance as chairman of the Equal Employment Opportunity Commission and reconciling the many contradictory statements in his speeches.

“The conventional wisdom seems to be that this battle is over,” said Ralph Neas, executive director of the Leadership Conference on Civil Rights. “We think when the facts come out (at the hearings), they will show that Clarence Thomas is a right-wing conservative with an awful public record.”

Taking a Stand on Clarence Thomas

Some interest groups that have taken a position on Clarence Thomas’ nomination to the Supreme Court: OPPOSED

* NAACP

* NAACP Legal Defense and Educational Fund

* National Council of La Raza

* AFL-CIO

* Leadership Conference on Civil Rights

* Women’s Legal Defense Fund

* People for the American Way

* Alliance for Justice

* National Abortion Rights Action League

* National Council of Senior Citizens

* National Women’s Political Caucus

* Nation Institute

* Congressional Black Caucus

* Americans for Democratic Action

* American Federation of Teachers

* National Council of Churches

* American Federation of State, County and Municipal Employees

* American Assn. of University Women

* United Church of Christ

* League of United Latin American Citizens

* National Baptist Convention USA

* Mexican American Legal Defense and Educational Fund

* National Organization for Women

* National Bar Assn., nationwide group of black attorneys

* National Women’s Law Center, women’s rights advocacy group

* National Black Caucus of State Legislators

* National Assn. of Criminal Defense Lawyers

IN FAVOR

* U.S. Chamber of Commerce

* Council of 100

* Coalitions for America

The White House says 50 groups have endorsed the nomination, including: * American Conservative Union

* American Family Assn.

* Americans for Tax Reform

* College Republican National Committee

* Concerned Women for America

* Congress on Racial Equality

* Conservative Caucus

* Eagle Forum

* Family Research Council

* National Black Nurses’ Assn.

* National Catholic Education Assn.

* National Center for Public Policy

* Religious Roundtable

* Republican National Hispanic Assembly

* United Conservatives of America

* U.S. Hispanic Chamber of Commerce

* Young Americans for Freedom

NEUTRAL

* Urban League

* ACLU national organization

Source: Associated Press, Reuters