Ways Sought to Improve Confirmation Proceedings : Congress: The problem is that ‘politics of abortion’ dominates the selection of justices, Sen. Mitchell says.

The one thing that both sides in the debate over Clarence Thomas’ nomination to the U.S. Supreme Court seemed able to agree on was a condemnation of the process by which he was confirmed.

In the hope of taking some of the sting out of future confirmation fights, the Bush Administration, senators, outside experts and pundits all plan to make suggestions in the next few weeks that would alter the roles played in the process by the White House, the Senate, the Judiciary Committee staff and the FBI.

President Bush said Wednesday that his aides are “flushing out” ideas, and others already were floating proposals.

But, will the next Supreme Court nomination be handled in a dramatically different way? Probably not. And the reason, according to political analysts and current and former Senate staff members, can be summed up in two words: abortion and politics.

“The President selects nominees because of their views, not despite them,” said Senate Majority Leader George J. Mitchell (D-Me.), himself a former federal judge. At the same time, a majority of the Senate disagrees with Bush on the abortion issue. With the two parties polarized, “the harsh reality is that the politics of abortion now dominates the process of filling vacancies on the Supreme Court,” Mitchell said.

To be sure, not all senators vote for nominees strictly according to their views on the abortion issue, and abortion is far from the only issue that creates political controversies for nominees.

But abortion is the one great divisive issue now on the court’s docket capable of stirring deep emotions among voters. It is the force that holds together the competing armies of interest groups, lends power to their battles and zeal to their advocates.

“There are people on both sides of the issue willing to go to great extremes,” said political analyst William Schneider. “And, until this issue is settled, I don’t think we’re going to have a kinder, gentler process.”

Mark Gitenstein, former chief counsel of the Senate Judiciary Committee, takes a similar position. The political right and left remain deeply divided on a series of constitutional issues, he said, and “as long as that is going on, if a nominee appears to have been chosen (because of his position on one of those issues), there’s going to be a reaction.”

As for proposals to greatly limit the ability of Senate staff members to investigate nominees, they are almost certain to be “totally unacceptable” to Senate Democrats, Gitenstein said.

The FBI is part of the Justice Department and works for the White House. And, although the bureau “is good at doing a preliminary investigation, when it gets beyond that, the second stage has to be done by someone independent of the Administration,” Gitenstein said.

A second problem with having the FBI conduct investigations is that the bureau repeatedly has failed to gather key information about nominees. In 1969, for example, it was not the FBI but a 24-year-old Senate staff member working through a source in Greenville, S.C., who turned up important evidence supporting the appearance of financial impropriety that sank the nomination of Clement F. Haynsworth Jr. to the Supreme Court.

And, a decade later, reporters, not FBI agents, discovered that Judge Douglas H. Ginsburg had smoked marijuana when he was a law professor, information that forced Ginsburg to withdraw.

In fact, the current process is not as helter-skelter as the public might have believed from watching the televised Thomas hearings. Under current rules, the FBI conducts a preliminary background investigation of the President’s nominee. Once the name is sent to the Senate, the Judiciary Committee’s investigative staff takes that preliminary FBI investigation and begins a more thorough background study, sometimes with the aid of FBI agents.

When personal allegations surface, the committee staff initially informs only the chairman, now Joseph R. Biden Jr. (D-Del.), and the senior minority member, now Strom Thurmond (R-S.C.). Allegations are shared with other members of the committee only after substantial evidence has been developed showing that the charge is serious.

Although there is widespread suspicion that either a member of the Senate or a staff member leaked Anita Faye Hill’s allegations of sexual harassment against Thomas to the media, there has been no evidence so far to suggest that the leak involved anyone on that senior staff of investigators.

Individual senators have the right to assign their own staff members to look into a nominee’s background, as do outside interest groups, both liberal and conservative.

One long-time government official suggested limiting that aspect of the process by persuading senators to agree not to authorize individual investigations. Others, however, point out that neither Republicans nor Democrats have had much luck in recent years in trying to prevent individual senators from striking off on their own. Senators zealously guard the independence of their staffs and are loath to accept central discipline.

So far, Administration officials have said that they have no clear idea of how sweeping Bush intends to be in his ideas for change. However, the long-time government official suggested that reforms could include a consensus among Judiciary Committee members on what subjects are appropriate for inquiry and an attempt to make committee proceedings more bipartisan.

Many ideas have been proposed for changing the system. Former Atty. Gen. Dick Thornburgh--a Senate candidate in Pennsylvania--suggested that the Senate establish a “special counsel for confirmations” to “collect, analyze and evaluate all data and information related to nominees” and to do most of the questioning in committee hearings.

Sen. Paul Simon (D-Ill.) proposed that the President and leading senators consult on potential nominees when a vacancy occurs and agree on a list of mutually acceptable candidates from which the President would choose.

The Ronald Reagan Administration followed that pattern after the defeat of Judges Robert H. Bork and Ginsburg, agreeing with key Democratic senators that the next nominee would be now-Justice Anthony M. Kennedy.

There are “large numbers of distinguished moderates” who would be acceptable to both Democrats and Republicans, Duke University law professor Walter E. Dellinger III noted. But, at both the Justice Department and the White House counsel’s office, a rigorous screening procedure exists to ensure that high court nominees meet tests of conservative ideological purity. As a result, moderates “cannot be nominated at the present time,” Dellinger said.