Emotions Swirl Over Fairness of Hearing Process : Committee: Thomas and Biden differ over role of the inquiry. At issue is whether the system is out of control.

In an impassioned statement, Supreme Court nominee Clarence Thomas told the Senate Judiciary Committee Saturday what he thought about the confirmation process:

“I have been harmed. My family has been harmed. I’ve been harmed worse than I’ve ever been harmed in my life. I wasn’t harmed by the (Ku Klux) Klan. . . . I wasn’t harmed by the Aryan race. I wasn’t harmed by a racist group. I was harmed by this process. This process, which accommodated these attacks on me.”

And in an equally impassioned response later in the day, Sen. Joseph R. Biden Jr. (D-Del.), the committee chairman, said to Senate critics of the process:

“Let me be completely blunt about it, it’s like democracy; it’s a lousy form of government except no one’s figured out another way. I’m getting fed up with this stuff about how terrible this system is. . . . We’re big boys. I knew when I ran for President everything was (fair) game. Anybody who runs for the Supreme Court or is appointed to the Supreme Court, to be precise, should understand. This is not Boy Scouts. It’s not Cub Scouts.”

The emotional statements during the second day of hearings on allegations that Thomas sexually harassed a former employee reflect a heated dispute over whether the confirmation process for the Supreme Court is out of control and who is to blame for its tawdry nature.

Supporters of Thomas, led by Sens. Orrin G. Hatch (R-Utah) and John C. Danforth (R-Mo.), are attacking the increasingly prominent role of special interest groups. The tactics of these groups, they argue, debase the process with unfair personal attacks on politically unpalatable nominees.

Those on the other side, mainly Thomas opponents, contend that the Bush and Reagan administrations set the tone for these high-pitched battles by picking candidates on the basis of politics, rather than choosing judges whose excellence would have evoked a consensus for approval.

About the only common ground between the two sides is that the airing of Anita Faye Hill’s graphic allegations against Thomas has distorted the nomination process and necessitated a serious debate over reforms to appease a disgusted public.

“Widespread revulsion at the process might well produce some dramatic changes in how the Supreme Court appointment process works,” said Walter E. Dellinger III, a law professor at Duke University and past adviser to the Senate Judiciary Committee’s Democrats.

The personal nature of the allegations against Thomas and the clear sense that he is on trial are indeed without precedent in the annals of the confirmation process. Even the bare-knuckled attacks on former Sen. John Tower’s unsuccessful nomination to be secretary of defense two years ago lacked the stark human drama of the collision between Hill’s X-rated charges and Thomas’s red-hot denials.

“I don’t think there is any precedent for this in American history in any context,” said Erwin Chemerinsky, a law professor at USC. “It is unique because of the nature of the charges and the way they were uncovered.”

The harshest denunciation came from Thomas himself, who charged Saturday that special interest groups helped promote Hill’s allegations and inject them into the confirmation process to derail his appointment.

“I wasn’t harmed by a racist group,” he said. “I was harmed by this process. This process, which accommodated these attacks on me. If someone wanted to block me from the Supreme Court of the United States because of my views on the Constitution, that’s fine. If someone wanted to block me because they felt I wasn’t qualified, that’s fine. If someone wanted to block me because they don’t like the composition of the court, that’s fine. But to destroy me--I would have preferred an assassin’s bullet to this kind of living hell that they have put me and my family through.”

For most of the nation’s history, Supreme Court nominees have not undergone any sort of public questioning. Only in the 1920s did they even begin to appear before the Senate, and then the hearings were routine. As recently as 1962, President John F. Kennedy’s nomination of Byron R. White to the Supreme Court was approved in less than two weeks.

The first real taste of personal matters in a Supreme Court confirmation arose in 1968 when President Lyndon B. Johnson tried to elevate Associate Justice Abe Fortas to the post of chief justice. Objections centered on Fortas’ relationship with Johnson, with evidence of financial irregularities that got wide publicity not surfacing until after his elevation was rejected.

When President Ronald Reagan nominated Judge Robert H. Bork to the court in July, 1987, special interest groups helped defeat him by attacking his record as a conservative activist. But those objections, strenuous as they were, focused on legal issues, such as abortion and the death penalty.

For the first 98 days of the confirmation hearings on Clarence Thomas, the debate revolved around his performance as chairman of the Equal Employment Opportunity Commission, his speeches and writings and his record as a federal appeals court judge of only 18 months.

Hill’s allegations of sexual harassment became public two days before the Senate was expected to vote to confirm Thomas--and the process immediately took a sharp detour into uncharted territory.

The allegations became known after Hill’s confidential statement was leaked to the press and forced a reluctant Senate to reopen its hearings. In response to Republican demands, Biden pledged Saturday that there would be an investigation into the leak.

But Thomas and his supporters on the committee were unrelenting Saturday in blasting the disclosure of the charges, blaming special interest groups for orchestrating the leak after a nationwide search for dirt on the nominee.

“A number of them are vicious,” said Hatch in denouncing such groups. “We saw it in the Bork matter and we’re seeing it here.”

Attacks on these organizations have been a key part of the Republican strategy since the Thomas nomination on July 1. One group singled out for criticism by Danforth is People for the American Way, a liberal lobbying group that spearheaded opposition to Thomas and Bork.

Ricki Seidman, a former lawyer for the group now on the staff of Sen. Edward M. Kennedy (D-Mass.), was one of the first people to ask Hill about her knowledge of sexual harassment at the EEOC under Thomas.

Arthur Kropp, president of the lobbying group, denied that his researchers have done more than examine Thomas’ legal record through his writings, speeches, performance at the EEOC and decisions from the bench.

“What is frustrating and infuriating is that even our friends think that we were engaged in dirt digging,” Kropp said. “People are sick to their stomach to see it all come down to this. It has become a circus and it has blown all of the other issues and concerns that were expressed out of the water.”

Kropp and representatives of similar groups said that they fear a public backlash against them that could lead to a return to the days in which high court nominees were never questioned about their judicial philosophy.

More than ever before, the public has been mesmerized by these hearings and their opinions will be counted by senators trying to escape accusations that they mismanaged the process and tried to sweep Hill’s charges under the rug.

Indeed, legal experts say that it is the public nature of the hearings that has damaged the credibility of the confirmation process by turning the sessions into something much closer to a criminal trial.

“But in a trial, the standard would be that the person is innocent until proven guilty beyond a reasonable doubt,” said Robert A. Katzmann, an expert on the courts at the Brookings Institution here. “In a political setting like this, all that is really needed is to raise doubts about the character of the nominee.”

The trial-like proceedings raise questions about whether the legislative branch has overstepped its authority and moved onto judicial grounds, said Katzmann. As a result, he said, one issue that must be debated in the aftermath will be what standard should be used to determine the qualifications of Supreme Court candidates.

So long as one party controls the White House and makes the nominations and the other party has a majority in the Senate and must confirm the appointment, politics will be part of the equation. But Democrats argue that politics has become too important since 1980 when the Republican Party passed a national platform advocating appointment of federal judges who support overturning Roe vs. Wade, the 1973 Supreme Court decision that made abortion legal.

For six years afterward, Republicans controlled the Senate and President Reagan’s nominations of Sandra Day O’Connor and Antonin Scalia and the elevation of William H. Rehnquist to chief justice proceeded smoothly. Since Democrats took over the Senate in 1986, the going has been tougher for some nominees, although even Bork’s ordeal pales in comparison to that of Thomas.

Some of those looking for a silver lining in the cloud now hanging over the process would like to see an effort between the President and the Senate to reach a consensus on a list of mutually acceptable nominees from which the President could choose.

“The most positive change that could be made in the process would be a genuine effort at advanced consultation between the President and the leadership of the Senate to achieve agreement on a truly distinguished list of persons who would be neither from the right nor the left ends of the spectrum,” said Dellinger, the Duke professor.

If that were to occur, Dellinger said, there might no longer be a need for the drawn-out hearing process that reached its perigee in recent days.

But USC’s Chemerinsky is less eager to revise the process, saying: “The Senate cannot defer to the President. As long as you have a President of one party and Judiciary Committee of the other, you are going to have and should have intense scrutiny of the nominees.”