Think of the Outcry If This Nominee Were White : Supreme Court: Better to leave the ‘black quota’ unfilled for now than put up with 30 years of Clarence Thomas.

Suppose President Bush had nominated as a successor to retiring Supreme Court Justice Thurgood Marshall a white conservative who opposed affirmative action, disapproved of racial integration and accused established civil-rights leaders of stirring up racial antagonisms so they could keep their jobs. Further suppose that the nominee, while head of the federal Equal Employment Opportunity Commission, had let the statute of limitations expire on 10,000 age-discrimination cases and drastically reduced the number of racial and sex discrimination cases found to have probable validity for court action. Certainly all major civil-rights organizations would have launched a campaign of unqualified opposition to the nominee’s confirmation.

What, then, explains the division of opinion among civil-rights organizations like the NAACP and the National Urban League, and among blacks generally, on the real Supreme Court nominee, Clarence Thomas, who differs from the hypothetical nominee only in that Thomas is a black person?

The purely symbolic value of a black on the Supreme Court as a role model apparently tempers for many blacks their disagreement with Thomas’s views. Others, aware that it’s probably Thomas or no black nominee at all, nurture a wishful hope that no black person who grew up as Thomas did could forget his roots and use his position as a lifetime Supreme Court appointee to vote against the civil-rights tradition. Still others find some attraction in what purports to be Thomas’ emphasis on self-help rather than government assistance for blacks.

But none of these arguments rationally explains the civil-rights leadership’s equivocation on a Supreme Court nomination that would have drawn unqualified opposition had the same nominee been a white person. It is doubtful that any nominee for the Supreme Court has ever been chosen by a President on the basis of his or her value as a role model rather than on the basis of the nominee’s perceived judicial philosophy. It should not be different for a black nominee.

It is true that the Senate’s rejection of Thomas would mean a court without a black member, because President Bush’s nomination of another black would destroy his already ludicrous attempt to portray the nomination of Thomas as one having nothing to do with race. Also, Thomas may actually be the only prominently placed black in the United States whose views on legal issues of race would be acceptable to the Bush Administration.

Pure and simple, there is an unarticulated but effective 23-year-old quota of one black Supreme Court justice. There is historical support for the conclusion that no other black would be appointed to the court while Thomas served. The “black quota” that began with Marshall’s appointment in 1968 was not the first Supreme Court quota of its kind. From 1916, with the appointment of Louis Brandeis, until 1968, there were five Jewish U.S. Supreme Court justices. With one exception, they served one at a time, in succession.

It is certainly ironic that a Supreme Court nominee and the President who nominated him both oppose quotas, even though the nominee and the President both gain from the quota aspects of the nomination: Thomas, who also succeeded a black chairperson of the Equal Employment Opportunity Commission (who in turn succeeded another black) gains a seat on the nation’s highest court; the President gains one more conservative Supreme Court justice, even though a white nominee with a record like Thomas’ would have a very difficult time winning Senate confirmation.

Responding to the cruel dilemma in which Bush’s nomination of a black conservative has placed them, blacks and the civil-rights leadership should oppose Thomas’ confirmation and pass up at this time the opportunity to fill Thurgood Marshall’s seat with a black justice. In the long run, a Supreme Court with no black member until a future President appoints one is better than 30 or more years of Clarence Thomas as the court’s single black justice.