Clarence Thomas: Qualified but With Qualifications : More questions than answers in the unsatisfactory confirmation hearings

Except for Judge Clarence Thomas’ White House handlers, nobody could have found the Supreme Court confirmation hearings of the Senate Judiciary Committee very satisfying or edifying. The intellectual bobbing and weaving of Judge Thomas, and the political shadowboxing of some senators, gave the hearings an undeniably scripted feel. And, as with most scripts today, this one has a predictable ending: The committee, followed by the full Senate, is expected to approve the nomination of Thomas as an associate justice.

EARLY THOMAS: By now much of the nation knows by heart the Horatio Alger story of Clarence Thomas--the Georgia kid born into abject poverty in the segregated South, nurtured by a stern but caring grandfather and educated by Catholic nuns. As a man he went on to graduate from Yale Law School. What we had hoped to learn was more about Clarence Thomas the jurist. The American Bar Assn. rated him “qualified” but withheld its highest rating, “well qualified.” On that score, Thomas’ sometimes lucid, sometimes stumbling testimony at the hearings did nothing to invalidate the ABA’s estimation of his legal prowess. Thomas did not distinguish himself as a legal mind.

His big political success may have been in managing to distance himself from rightist ideological positions that he had publicly embraced as an ambitious Reagan Administration official. Now he describes himself as an open thinker, a judge without an agenda. Unlike Justice David Souter, the so-called “Stealth” candidate without much of a paper trail, Thomas, the federal appeals judge and onetime controversial chairman of the Equal Employment Opportunity Commission, submitted 30,000 pages of documents and 138 speeches to the committee. And he certainly had expressed strong opinions. Until, at least, the hearings.

On several occasions then he was tentative and evasive in his answers about topics he had once seemed unequivocal about--the most polarizing being abortion. For instance, soon after a 1987 article appeared that called abortion “a holocaust” and said that the Constitution protects the “inherent right to life” of a fetus, Thomas praised it as a “splendid example of applying natural law.” But during the hearings, Thomas said he did not endorse the article, did not know all the features of the article and that he disagreed with it. His 1987 compliment, he said, was “a throwaway line” to demonstrate his interest in natural law as a political philosophy.

And what of his previous remarks about “natural law”--a term so double-edged that it has been invoked both as a basis for inalienable human rights and by the author of the Dred Scott decision, which relegated blacks to the status of property? And the committee seemed powerless as Thomas went to great lengths to put the most benign, reasonable face on previous fiery and antagonistic comments about affirmative action and quotas.

LATE THOMAS: Above all else in these hearings, the questions and testimony revealed shortcomings in the confirmation process. The committee asked questions about abortion and civil rights too much to the exclusion of other topics. Surely they are crucial issues, but far from the full universe of issues that will come before the high court during Thomas’ tenure, which, because he is only 43, could last decades. Moreover, question after question was met by the nominee’s refusal to be drawn into many specifics. In fact, there is good reason not to comment on pending or probable cases. At the same time, however, it is instantly recalled that previous nominees to the high court offered similarly evasive or noncommittal responses--and turned out to favor restricting abortion.

Thomas’ remarks on these and other issues were worrisomely ambiguous. The hearings suggest he might be too malleable . . . or that he could be refreshingly open and independent. At least Thomas did flatly reject 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 said. The meaning of the Constitution “is not frozen in time” but instead “moves with our history and our tradition.” That is a thoroughly respected position, well within the legal mainstream.

We have doubts about Thomas. He appeared to renounce too many past positions too easily. His grasp of the law seemed more facile than profound. But we also believe he has an opportunity, if he takes full advantage of it, to make a crucial contribution to the court as the evident successor to retired Justice Thurgood Marshall. Our hopes are best expressed by Yale Law School Dean Guido Calibresi, who noted that “none of the great justices of the past . . . came to the court fully formed. In the end, it was a combination of character, ability and willingness to really work hard and openness to new views that made them great justices.” Let’s hope for the best.