Thomas’ Reluctance to Give Answers Follows Tradition : Hearings: Supreme Court nominees refused even to be questioned until 1925. Senators’ positions on the issue have switched depending on politics.

With Democrats continuing to press Clarence Thomas to spell out his views on abortion, affirmative action and other controversial topics, and Republicans charging that the nominee is being treated unfairly, the Thomas hearings have begun to focus on a perennially unsettled issue: Just what questions can a judicial nominee be required to answer?

The problem is always difficult for senators--they have little recourse if a nominee stays silent except to threaten to vote against him. And few senators have felt comfortable making the flat-out argument that they voted against a nominee simply because he would not answer questions.

This time, the issue is particularly explosive for Thomas’ liberal opponents. For having allowed past nominees, including David H. Souter, Antonin Scalia and Sandra Day O’Connor, to slide by with few answers, committee members now could face a charge of a racial double standard if they attempt to hold Thomas to a stricter guideline.

Already Thursday, Thomas’ conservative Republican backers began laying the groundwork for that charge.

“One year ago this week, Judge Souter declined to say anything about abortion. He was approved 13 to 1 in this committee, 13 to 1,” Utah’s Orrin G. Hatch exclaimed at one point. Souter was asked about abortion 36 times, Hatch noted, whereas Thomas already has been asked about the subject more than 70 times with at least a day of testimony to go.

“It is, in my view, inappropriate to keep this up,” Hatch complained.

Reluctance to answer questions is a long judicial tradition. Until Harlan Fiske Stone, then attorney general, was chosen in 1925, nominees for the high court refused even to appear before the Senate to be questioned.

Once nominees began appearing, they generally refused to say much, arguing that to do so would jeopardize their judicial independence.

That tradition has long been galling on Capitol Hill, where senators seldom take no for an answer. But individual senators’ positions on the issue have switched back and forth, depending on the politics of the day.

Sen. Strom Thurmond of South Carolina, the senior Republican on the Judiciary Committee, for example, complained bitterly during the 1960s when Lyndon B. Johnson’s nominees refused to answer his questions. For the last decade, however, he has staunchly protected the rights of Republican nominees to stay quiet.

On the other side, in 1981, O’Connor refused to answer questions from conservatives who were concerned that she might secretly harbor sympathies for abortion rights. At the time, Sen. Edward M. Kennedy (D-Mass.) defended her.

“It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy,” Kennedy said then. Thursday, Republican Sen. Alan K. Simpson of Wyoming was quick to quote Kennedy’s words back at him.

“I just happened to think, as I looked at that, that what’s true for the New Right is also true for the Old Left,” Simpson said.

Although Thomas repeatedly has refused to answer questions about abortion, he has been more forthcoming on several issues than some other recent nominees. Souter presented himself to the committee as almost a complete blank slate. And after a year on the court, Souter has written so little of note that his slate remains mostly clear.

In 1986, Scalia went so far as to refuse even to say whether he agreed with Marbury vs. Madison, the landmark decision from 1803 in which the court unanimously held that it had the power to overrule acts of Congress that conflicted with the Constitution.

Thomas, by contrast, has endorsed several fairly recent cases, including the high court’s 1965 decision declaring that married couples have a right to privacy and a 1977 decision saying a Cleveland suburb could not use zoning laws to bar anyone other than traditional two-generation nuclear families from living in the town. He has also made clear that he disagrees with some other decisions, such as rulings upholding affirmative action programs that set “preferences, goals, timetables and quotas.”

But on the subjects he has decided to avoid, particularly abortion and the broad topic of “natural law,” Thomas has been insistent in his refusals, prompting a frustrated Sen. Joseph R. Biden Jr. (D-Del.) at one point to complain that “this is getting more like a debate than it is getting information.”

Even in those cases where senators get the information they seek, however, what use they can make of a nominees’ answers also remains in doubt. The Constitution declares that the President will appoint members of the court “by and with the advice and consent of the Senate.”

Over the years, some senators have argued the Constitution’s words give them the same right a President has to approve or disapprove on the basis of a nominee’s views, philosophy or politics. Others, however, have insisted that the Senate’s role is more limited--to approve a nominee so long as the record shows that he is not grossly unfit for office or guilty of some serious misconduct.

In reality, the Senate’s role--just like every other aspect of the confirmation process--is controlled by politics.

And given the political attractiveness of Thomas--his up-from-poverty life history, his support from many blacks, particularly in the South, and his ability, so far, to handle himself well before the television cameras--opponents of the nomination concede that simple refusal to answer questions is not likely to be enough to stop him from taking a seat on the high court.

“You can argue that the nominee should have the burden of proving that he should be confirmed,” a key member of one of the coalitions opposing Thomas said the day before the hearings began. “But in this case, the truth is, we bear the burden of showing he is unfit. It’s uphill.”