NEWS ANALYSIS : Thomas' Views Don't Fit Orthodox Right : Judiciary: His comments at hearings suggest he would vote with the center of the current court, a less conservative stand than some expected.


Through four days at the witness table, Clarence Thomas has been mute as the Sphinx on abortion, but he has made his positions clear enough on other issues to suggest that his views fall in roughly the center of the current court--a quite conservative spot, but probably less conservative than some of his ardent backers would have wished.

In his clearest departure from cherished conservative views, Thomas flatly rejected former Judge Robert H. Bork's belief that the Constitution must be interpreted only as its 18th-Century authors originally intended.

"The world didn't stop with the framers," Thomas told the Senate Judiciary Committee. The meaning of the Constitution "is not frozen in time," he said, but, instead, "moves with our history and our tradition"--a thoroughly mainstream judicial sentiment.

In particular, Thomas said he agreed that the Constitution protects a right to privacy--something Bork questioned--although Thomas repeatedly has dodged attempts to pin him down about how far that right would go.

Thomas also departed from conservative orthodoxy on criminal law. Sen. Dennis DeConcini (D-Ariz.), a former prosecutor, cited several liberal criminal law decisions of the 1960s and asked Thomas if he considered them examples of "judicial activism," but the nominee demurred. "I do not consider it judicial activism," he said. "I see it as a court trying to take some very pragmatic steps to prevent constitutional violations," he said of decisions such as the 1966 Miranda case, which required police officers to warn suspects of their rights before questioning them.

Perhaps just as important, Thomas has emphasized a personal background that sets him sharply apart from the eight justices he is likely to join on the court--a background that could well lead him to see some kinds of cases in a different light from other judicial conservatives.

One notable example of that difference came early in the hearings, when Thomas was asked about a 1977 case in which the court, by a 5-4 margin, prevented a suburb of Cleveland from prosecuting an elderly woman for sharing her house with her son and two grandchildren. The town had a zoning ordinance that tried to limit housing to traditional nuclear families only.

"That would have had direct implications on my own family," said Thomas, who was raised in part by his grandparents. "I could easily have been zoned out of my neighborhood should approaches like that take place."

His apparent support for the court's 1977 ruling would ally Thomas with the man he is nominated to replace--retiring Justice Thurgood Marshall--but against Chief Justice William H. Rehnquist, who argued at the time that cities and towns have the right to enact essentially whatever zoning ordinances they please.

Thomas offered a similarly personal insight when asked about criminal law, talking to the members of the Judiciary Committee about the view from the window in his office in the U.S. Courthouse here.

"I have occasion to look out the window that faces C Street," he said. "And there are converted buses that bring in the criminal defendants to our criminal justice system, busload after busload. And you look out, and you say to yourself, and I say to myself almost every day, 'But for the grace of God, there go I.' "

Few if any of the current justices would be likely to make such a comparison.

None of this means that Thomas is a "closet liberal," as committee member Sen. Howell Heflin (D-Ala.), perhaps jokingly, suggested. Thomas is probably not even what a decade ago would have been called a "moderate."

As a result of the retirement of aging liberals and 10 years of Ronald Reagan and Bush appointees, however, the high court has moved far enough to the right that Reagan appointee Sandra Day O'Connor now is generally at the center. Thomas seems likely to join her there, assuming that his answers are an accurate forecast of the votes he will cast if he is confirmed.

Thomas indicated, for example, that he shares O'Connor's view about how best to reconcile conflicts between church and state. Some members of the court recently have advocated a view that critics fear would give government far more leeway to infringe on religious freedom.

And, also like O'Connor, but unlike more ardent conservatives, Thomas expressed mixed views on the death penalty, indicating support for it but also concern for the rights of defendants.

On affirmative action, Thomas stuck to his strongly expressed opposition to numerical goals, timetables or racial preferences, which have been upheld in several cases over the last decade.

But he added an important caveat, again hearkening back to his own experience. "We have to remember that, even though the Constitution is colorblind, our society is not," he said. "We will continue to have that tension."

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