Crucial Votes Seem Headed Toward Thomas

The hearings are over, the bright lights extinguished, the cameras dark. And Monday, in the quiet after the storm, senators pondered not only what but how to decide the fate of Supreme Court nominee Clarence Thomas.

As the day drew to a close, with thousands of telephone calls still overwhelming Capitol switchboards and opposing sides confronting senators with competing polls, at least one key guideline appeared to have emerged clearly through the fog of indecision. Those senators whose votes are key to Thomas’ future--the 13 Democrats who had announced support for his nomination before Anita Faye Hill’s devastating accusation of sexual harassment--overwhelmingly seem to have agreed that it is Hill who bears the burden of proof.

Unless their review of the testimony shows that Hill has convincingly proven her case, the senators and their aides said, they plan to side with Thomas.

“The ‘Dennis’ standard is that if there’s a doubt, it goes to the accused and not the accuser,” said Sen. Dennis DeConcini of Arizona, one of the 13 Democrats.

Given the almost inevitable doubts that remained after the hearings’ end, vote counters on both sides agreed that the decision to accord Thomas the benefit of the doubt seems likely to convince most of the key swing votes to join in DeConcini’s conclusion that “the burden of proof to overcome a presumption in favor of Judge Thomas has not been met.”

With that, the vote counters said, unless another dramatic revelation changes minds overnight, Thomas may well hold the votes he needs--nine of the 13 Democrats plus 41 Republican supporters--to be confirmed.

But for the senators on the line, that still leaves the arduous task of reviewing the evidence, checking the facts and making sure that whatever decision they make can be justified to the large number of constituents who are certain to be on the other side, whichever way they go.

“I’ve never been more undecided on anything in my life,” Sen. J. James Exon (D-Neb.), one of the 13, told reporters. Although he watched until past midnight Sunday, “the hearings didn’t produce a whole lot to help me.”

Two things trouble him, Exon said: Thomas’ reaction to the charges and Hill’s willingness to remain working for the man she said had made obscene suggestions to her.

Thomas “used some language that was premeditated and well-calculated--’I’d rather die than withdraw. . . . I’d rather take an assassin’s bullet. . . . The Senate is a lynch m” Exon recalled. “I thought his judicial temperament was far better than that.”

On the other side, Hill’s willingness to stay with Thomas seemed inconsistent with her charges, he said.

Sen. Joseph I. Lieberman (D-Conn.), a former state attorney general, said that he had been impressed with Thomas’ “personal strength and intellectual capacity under pressure” but that he plans to review tapes of Hill’s Friday testimony, parts of which he had missed, to examine her “demeanor.”

Sen. David L. Boren (D-Okla.), meanwhile, taped parts of the hearing that he missed and asked his aides to express-mail a copy of the transcript to him as he traveled the state. Over the weekend, Boren, who has spent most of the last several weeks handling the Senate’s other contentious nomination, that of Robert M. Gates to head the CIA, sampled opinion at the Texas-Oklahoma football game, which he watched with--among others--hundreds of Hill’s Oklahoma University colleagues and students.

Monday morning, Sen. Richard C. Shelby (D-Ala.), who had spent the weekend watching the testimony at home, asked his staff, too, to put together a full transcript. Shelby also asked for a copy of the federal court case that contains a mention of Long Dong Silver and planned to return to Washington late Monday to read a copy of the FBI report on Hill’s allegations.

And Sen. Alan J. Dixon (D-Ill.), who spent the last several days discussing the case with constituents, planned a late-night meeting with his staff to discuss the testimony, according to his top aide, Gene Callahan. Dixon had not made up his mind how to vote, Callahan said, but had heard extensively about the case from his constituents.

“Illinoisans are pretty fair minded,” he said, when asked what Dixon had heard. “When someone is accused of something, the burden of proof is that the accuser has to prove the charge.”

In fact, a Los Angeles Times Poll conducted over the weekend showed considerably more public ambivalence on that subject. Asked which side “bears more burden to prove they’re telling the truth,” those polled split sharply, with 47% saying Hill bore the burden, but 41% saying Thomas did. Men were more likely to put the burden on Hill but the gender gap was slight.

In the Senate, however, the decision to accord Thomas the benefit of the doubt is shared by a broad spectrum, ranging from Thomas’ most ardent supporters to Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.), an opponent.

The difference reflects the unusual perspective senators bring to the case, said political analyst William Schneider of the American Enterprise Institute. Every member of the body can look at the case and say “there but for the grace of God go I,” Schneider said. “Every one of them knows charges could be brought against them at any time.”

Some senators disagreed with the emerging standard. “The Bush Administration is urging the Senate to give the benefit of the doubt to the nominee. That proposition is wrong,” Sen. Edward M. Kennedy (D-Mass.), said in a statement.

And several legal experts noted that the doctrine of “innocent until proven guilty” was designed to shield a person against unjustly being sent to jail, not to ease the way for a person to obtain one of the highest offices in the land.

“Losing a Supreme Court nomination is just not the same as going to jail,” said Georgetown University law professor Paul Rothstein.

Added Brookings Institution scholar Robert A. Katzmann: “In a political setting, the question is really different” than in a trial. “In a political setting all that is really needed is to raise doubts about the character of the nominee.”

Nonetheless, with behind-the-scenes lobbying from the White House reinforcing the Senate’s natural inclinations against rendering harsh judgments on other prominent people, Kennedy’s argument appeared to be picking up little support beyond the ranks of those already committed to vote no.

White House officials reinforced their argument with polls showing that Americans in general, and blacks in particular, support Thomas. But the key senators needed little convincing given the overwhelming evidence being registered by their own receptionists.

Boren’s three offices--two in Oklahoma and one in Washington--logged 2,000 calls on Monday alone about the nomination, spokesman David Hoffman said. The calls ran in favor of Thomas 70% to 30%, he said. Shelby’s Washington office has been receiving 200 calls a day, 90% in favor of Thomas, said his press secretary, Tricia Primrose.

Although the calls could be the result of organized efforts, Senate aides said that the public was so divided on the issue that their bosses did not think they would pay a strong political price regardless of how they vote.

Putting a finger to the wind “is not going to help them,” said one longtime aide. “This is one of those classic things where, God forbid, you just have to go with your judgment.”

Political analyst Schneider agreed. Had the Senate voted last Tuesday to confirm Thomas without conducting a hearing on Hill’s allegations, members would have “incurred the wrath of a lot of women,” he said. But now that the hearings have been concluded, with women almost as divided on the verdict as men, “I don’t think the edge of anger is as strong. The issue, as Biden said during the hearings, has been ‘ventilated.’ ”

Times staff writers William Eaton, Melissa Healy and Douglas Frantz contributed to this story.