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GOP Calls Stress on Abortion Not Fair to Thomas

TIMES STAFF WRITER

As Supreme Court nominee Clarence Thomas continued to avoid any comment on the highly charged abortion question, Republican members of the Judiciary Committee charged the Democrats on Thursday with turning the confirmation hearing into a one-issue fight.

President Bush’s nominee “has been asked more than 70 questions on abortion” during the three days of hearings, Sen. Orrin G. Hatch (R-Utah) complained. “I don’t know why you are being singled out,” he said, since no other high court nominee has been pressed as hard or as often to state his view on the the 1973 Roe vs. Wade decision that legalized abortion.

Thomas’ supporters also voiced anger at Democratic charges that the 43-year-old black conservative has switched his views to win confirmation to the high court.

Thomas “is maintaining his cool about these charges, but I resent them,” said Sen. John C. Danforth (R-Mo.), his mentor and friend. “I think it is outrageous to talk of a ‘confirmation conversion.’ He is a man of integrity. As long as I have known him, Clarence has called them just as he sees them.

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“This has turned into a tag team match. Every 30 minutes, a new one leaps into the ring.”

Meanwhile, President Bush praised Thomas for “doing a beautiful job up there.”

The sharp counterattack by the Republicans came as the hearings were winding down. As the 14 committee members finished a second round of questions, Thomas found himself restating answers he had given earlier. He repeatedly said he had not made up his mind on abortion and was determined to preserve his “impartiality.”

But clearly, the judge’s supporters also were anxious to quell concerns that his support on the committee was eroding.

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Because of his inspiring life story and his strong support from Bush, Thomas began the hearings with the likely backing of not only the committee’s six Republicans, but also most of its eight Democrats. Only Sens. Howard M. Metzenbaum (Ohio) and Edward M. Kennedy (Mass.) were seen as likely to vote “no.”

But, when Thomas seemed to abandon his oft-repeated public statements on matters such as natural law, abortion, privacy and property rights, nearly all the Democrats voiced irritation over what they saw as another conservative nominee trying to sound moderate enough to win confirmation.

Nearly four years ago, Judge Anthony M. Kennedy of Sacramento presented himself as a jurist with “an open mind” and no fixed ideology. Last year, David H. Souter of New Hampshire did the same. Both won confirmation with the support of the Democrats, only to then join the solidly conservative bloc on the Supreme Court.

After three days of hearings, committee staffers and Senate aides say they expect at least four Democrats to vote against Thomas, and possibly one or two more. The liberal legal activists who have lobbied against the nomination said Thursday that they could see as many as seven of the eight Democrats--all except Sen. Dennis DeConcini of Arizona--voting “no.”

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But that prediction--the most optimistic by Thomas’ critics and extremely unlikely in the view of his supporters--would still send the nomination to the Senate floor on a 7-7 vote. There, Bush could use his considerable popularity to ensure Thomas’ confirmation.

Hatch predicted after Thursday’s hearing that Thomas will win the committee’s approval by at least an 8-6 margin. Last year, Souter won on a 13-1 vote in the Judiciary Committee.

Regardless of the final vote, the Democrats have succeeded in making a political point. From the beginning, they have pointedly avoided the issue of civil rights and “affirmative action.” Instead, they concentrated on abortion and privacy.

If Supreme Court Justice Clarence Thomas casts a key vote to overturn the Roe vs. Wade ruling, the Republican Party will be responsible, they say. Just as the Bush White House tried to stick the “quota” label on the Democrats in the past year, the Democrats in turn want to stick the “anti-abortion” label on the Republicans.

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Meanwhile, during Thursday’s testimony, Thomas distanced himself slightly from staunch conservatives on matters such as religion, privacy and liberty.

For example, the Constitution says the government may not deprive a person of “liberty . . . without due process of law.” Justice Antonin Scalia and failed Supreme Court nominee Robert H. Bork said this referred to “liberty” as understood 200 years ago when the Bill of Rights was added to the Constitution.

But Thomas said the liberty protected by the Constitution was “not frozen in time. Our notion of what liberty means evolves with the country. It moves with our history and our traditions,” he said. Though it is not clear what this might mean for a Justice Clarence Thomas, the notion of an “evolving” concept of liberty was most prominently supported by former Justice William J. Brennan Jr., the court’s pre-eminent liberal.

On the separation of church and state, Thomas repeated his qualified endorsement of the court’s current doctrine, which forbids any laws or government actions that “advance” religion. William H. Rehnquist, the chief justice, opposes the separation-of-church-and-state doctrine and believes that government may “support” and “encourage” religion.

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Though usually a Rehnquist ally, Justice Sandra Day O’Connor has differed with him on religion. She says the court should strike down any law and government action--such as the placement of a creche on the steps of a city hall--that seems to “endorse” religion. Unlike Rehnquist, Thomas said he had “no quarrel” with the current court doctrine and spoke favorably of O’Connor’s view on religion.

When pressed, Thomas agreed too that married couples had a “fundamental right to privacy” in personal matters. Though this concession does not bind Thomas to upholding the right to abortion, it does go further than either Scalia or Bork. Both have said that the Constitution does not mention the word “privacy,” and, therefore, that the court has no power to declare privacy to be a fundamental right.

But Thomas also confirmed that he agrees with Scalia that federal law absolutely forbids employers to give “any preference” to an employee because of race, sex or ethnic background. In 1987, Scalia dissented sharply when the court upheld a Santa Clara County affirmative action policy that resulted in a woman being promoted over a slightly better-qualified man.

When questioned Thursday, Thomas said he agreed with Scalia’s dissent, not the majority opinion. With Thomas on the high court, Rehnquist and Scalia may move to overturn that 1987 decision and prohibit any move by a company that “discriminates” for or against racial minorities or women.

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When asked why he wanted to serve on the Supreme Court, Thomas alluded to the fact that he grew up poor and black and therefore “could bring something to the court,” all of whose members are white except the justice he will replace, Thurgood Marshall.

“I can walk in the shoes of the people who are affected by what the court does,” he said. “You know, on my current court, I have the occasion to look out the window that faces C Street. And there are converted buses that bring in the criminal defendants” to the District of Columbia’s court. Most of these crime suspects are young African-Americans.

“I say to myself almost every day: ‘But for the grace of God, there go I,’ ” he said.

Committee Chairman Joseph R. Biden Jr. said he expected the senators to finish their questioning of Thomas by this afternoon. On Monday, the committee will hear from the American Bar Assn., which gave Thomas a lukewarm “qualified” rating. Afterward, representatives of various interest groups will speak for and against the nomination.

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