Supreme Court nominee Clarence Thomas opened his confirmation hearings Tuesday by backing away from his controversial past statements on abortion, natural law and economic rights, saying that they were merely the musings of a “part-time political theorist.”
The 43-year-old black conservative also followed the same path as other recent Republican court nominees by declaring that he believes that the Constitution gives married couples “a right to privacy” but refusing to say whether that right includes the option to choose abortion.
The comments of the appeals court judge highlighted his first day of confirmation hearings before the Senate Judiciary Committee, whose members listened raptly as he described in moving terms his rise from poverty in the segregated South, although he seemed uncertain when he defended his legal views.
By the end of the day, Thomas’ supporters said they were convinced that he had put to rest the idea that he believed “scary things about natural law,” in the words of Sen. John C. Danforth (R-Mo.), his principal Senate sponsor.
But critics of the nomination thought that Thomas had stumbled.
“This is the earliest ‘confirmation conversion’ we’ve ever seen,” said Ralph Neas, executive director of the Leadership Conference on Civil Rights. In 1987, Judge Robert H. Bork was criticized by Neas and others for a so-called conversion in which he repudiated some of his conservative writings.
During the 1980s, Thomas gained national attention as a prominent black conservative in the Ronald Reagan Administration. In legal circles, he gained attention for invoking “natural law” or “higher law” as a key principle underlying U.S. law.
Though the notion that man had “natural rights” was popular in the 18th and 19th centuries, it was rejected by most legal scholars and judges in the 20th Century because they believed that the concept could lead to abuses. The Supreme Court in the 19th Century, for example, upheld slavery and the exclusion of women from practicing law by invoking the laws of “nature.” Under the current prevailing view, law is only what is written into statutes or the Constitution; there is no “natural” law that stands above written laws.
However, in dozens of speeches, Thomas has cited his belief in natural law. With few exceptions, he has used the notion only to endorse the principle that “all men are created equal.” Not only does the phrase appear in the Declaration of Independence of 1776, but the concept was cited by President Abraham Lincoln during the 1860s and by Dr. Martin Luther King Jr. during the 1960s, Thomas has said.
But natural law has proven to be something of a wild card. Critics have wondered whether a Supreme Court justice who believes in natural law might decree that a fetus has a natural right to life, that property rights may not be infringed by zoning laws or that women have a natural role as mothers and homemakers.
Thomas wasted no time Tuesday in distancing himself from those ideas.
“I don’t think you can use natural law as a basis for constitutional adjudication,” he told committee Chairman Joseph R. Biden Jr. (D-Del.). Natural law may be useful for “political theorizing,” Thomas said, but it is not a basis for making court decisions.
Thomas was also careful to tiptoe around the abortion controversy. In 1965, the Supreme Court said that the Constitution gives married couples a right to privacy. That, in turn, became the springboard for the 1973 Roe vs. Wade ruling giving women a right to choose abortion.
“My view is that there is a right to privacy in the 14th Amendment,” Thomas said, although refusing to say anything about Roe vs. Wade. “I don’t think I could maintain my impartiality and comment on that specific case,” he said.
In 1987, Bork ran into trouble when he told the committee that he did not think the Constitution includes a specific right to privacy.
Since then, Anthony M. Kennedy and David H. Souter won confirmation to the high court after telling the senators that they endorsed the “right to privacy.” Like Thomas, both nominees refused to comment directly on the Roe ruling or the right to abortion.
At Tuesday’s hearing, Thomas also repudiated a 1987 article by conservative philosopher Lewis Lehrman. The article called abortion “a holocaust” and said that the Constitution protects the “inherent right to life” of a fetus. Soon after the article appeared, Thomas spoke to a conservative audience in the Lehrman Auditorium of the Heritage Foundation and praised the article as a “splendid example of applying natural law.”
“I did not endorse the article,” Thomas said when asked about the matter Tuesday. “I don’t know all the features of the article. But I disagree with the article.”
Biden appeared dissatisfied with Thomas’ responses, noting that they “raised more questions than they answered.”
Opponents of the nomination also pounced on Thomas’ rejection of his earlier comments.
“I’m astonished at Judge Thomas’ attempt to deny his record,” said Kate Michelman, executive director of the National Abortion Rights Action League.
The judge’s tentative, sometimes fumbling responses to the committee’s questions contrasted sharply with his dramatic opening statement.
With his mother, sister, wife and son sitting behind him, Thomas, in a deep voice and deliberate manner, told of his early days in Pin Point, Ga.
“Imagine, if you will, two little boys with all their belongings in two grocery bags,” he said, describing the scene in 1955 when he and his brother left to go live with his grandparents.
“Our grandparents were two great and wonderful people who loved us dearly. I wish they were sitting here . . . so they could see that all their efforts, their hard work were not in vain.”
He also pointedly praised leaders of the civil rights movement and Justice Thurgood Marshall, the jurist he has been chosen to replace.
“But for the efforts of so many others who have gone before me, I would not be here today,” he said. “Only by standing on their shoulders could I be here.”
Danforth, one of the most respected members of the Senate, warmly praised Thomas in introducing him to the committee. In 1974, Danforth, then Missouri’s attorney general, hired Thomas, then a new graduate of Yale Law School. At every succeeding step of Thomas’ career, Danforth has helped.
Directly addressing the all-white, all-male committee, Danforth also spoke of Thomas’ triumph over racism and segregation.
“Not a single member of the Senate knows what Clarence Thomas knows about being poor and black,” he said.
The hearing took place in the ornate Senate Caucus Room, the scene of dramatic encounters from the Teapot Dome scandal in the 1920s, to the Army-McCarthy hearings in 1954, the Watergate hearings in 1973 and, more ominously for Thomas, the Bork hearings in 1987.
After five days of Judiciary Committee hearings, Bork was unable to shake the perception that he was a conservative extremist--and perhaps arrogant--and was voted down by the committee.
In contrast to the stiff and professorial Bork, Thomas warmly pumped the hands of the senators, beamed for photographers and laughed easily and often.
But Thomas, unlike Bork, faces a new obstacle: a recent sharp turn to the right by the Supreme Court. Several Democrats noted the rash of conservative decisions handed down by the court headed by Chief Justice William H. Rehnquist. They worried aloud that the judiciary may fall into a conservative grip that will last well into the next century.
From 1972 until 1986, only two new justices were named to the high court. Throughout that period, the court maintained an uneasy balance between its liberal and conservative factions. But, as Biden noted during Tuesday’s hearing, Thomas, if confirmed, would be the fourth new justice to join the court in the last five years.
This “is a rate of change unequaled in recent times,” Biden said. “In this time of change, fundamental constitutional rights which have been protected by the Supreme Court for decades are being called into question.”
Before 1937, a conservative-dominated high court repeatedly struck down measures, such as minimum wage and child labor laws, that Congress had enacted to regulate business.
In several speeches, Thomas has chided the high court for failing to protect “economic rights” and “property rights” since the 1930s.
On Tuesday, Biden said he is concerned that Thomas as a justice could lead a move within a thoroughly conservative court to overturn federal laws that impose health and safety standards on business.
Thomas said those fears are unwarranted. He said that he has “no agenda” and does not believe that the court should aggressively strike down regulatory laws.
“When I operate as a judge, I’m no longer an advocate (for views he had stated earlier). My job is not to second-guess your intent,” he said.
Only four senators--Edward M. Kennedy (D-Mass.), Strom Thurmond (R-S.C.), Orrin G. Hatch (R-Utah) and Biden--had a chance to question Thomas on Tuesday. The other 10 members of the committee should get their turn today.
The committee expects to keep Thomas on the witness stand through the week.
After the first day’s session, some senators and committee staff members said they were surprised that Thomas seemed to have difficulty defending and explaining his views.
“I found the part about natural law perplexing,” said Sen. Howell Heflin (D-Ala.), considered a swing vote on the committee. “I may have to ask him some more about that.”
Thomas may have been hurt somewhat by an expectation that he would perform superbly as a witness. He had appeared before congressional committees more than 50 times during his years in the Reagan Administration and was confirmed just last year to a seat on the U.S. Court of Appeals for the District of Columbia.
Last year, Souter came before the committee as a virtual unknown, a supposed recluse from rural New Hampshire. But over three days of hearings, he gave detailed and thoughtful responses to the committee’s questions, assuring him an easy confirmation.
Since his nomination on July 1, Thomas has been meeting with White House officials and other backers to prepare for the hearing. Yet, when asked about speeches or articles, he repeatedly said he could not recall his exact comments. Over the summer, critics have often cited his participation in a White House “working group” report on the family that denounced the 1973 Roe vs. Wade ruling affirming a woman’s right to an abortion.
When asked about the report, Thomas said he could not comment on it in detail because he had never read its contents.
THOMAS TEXT: A22