COLUMN RIGHT/ TOM BETHELL : The Democrats Unwittingly Saved Thomas : Thomas may have been trapped if statements on abortion had not been ruled out.

Despite a week of intense scrutiny, the confirmation hearings of Clarence Thomas failed to bring out what may have been the real source of contention between Prof. Anita Faye Hill and the new associate justice of the Supreme Court: ideology--in particular, disagreement on the abortion issue.

At several points in the testimony this did come out, but it was never explored. In response to a question from Sen. Hank Brown (R-Colo.), Hill admitted that she had differed with Thomas on abortion. When Hill was asked how she differed, there was a moment of suspense. She looked toward Sen. Joseph R. Biden (D-Del.), the committee chairman, as though appealing for a ruling. The question was out of order, Biden decreed, and the matter was not explored further.

In addition, in a brief exchange with Sen. Strom Thurmond (R-S.C.), Hill said that she did have philosophical differences with Thomas. And Thomas himself mentioned that when he would go to her house, he would argue with her about philosophical differences, or words to that effect. Nonetheless, Thomas never tried to make an issue of these philosophical differences, as one might have expected him to do. Their nature and extent remained unexplored throughout the hearing.

Why would neither side have wanted to explore this key point? Perhaps Hill wanted her claims of sexual harassment to seem like pure truth-telling, untainted by ulterior political considerations. As she said on her return to Norman, Okla.: “I came to Washington because . . . I was trying to do my duty as an ordinary American citizen and I simply told the truth.”

If she had conceded that her testimony had also been driven by considerations of policy, doubt would certainly have been cast on the impartiality of her claims of sexual harassment. After all, there is a bipartisan consensus about such claims. The senators certainly would not have delivered a nonpartisan round of thanks for testimony that was avowedly political.

Thomas had an even better motive for playing down philosophical differences. If the point had been stressed that they differed on abortion, then presumably they must have discussed the issue. Thomas would then have put at peril his own claim, made before the Judiciary Committee in September, not to have discussed Roe vs. Wade (the court’s 1973 abortion decision) with anyone. So both sides may have had their own reasons for skirting the crux of the case.

It seems clear from testimony elicited by Sen. Arlen Specter (R-Pa.) that Hill intended to sink the Thomas nomination anonymously, using the harassment issue as a convenient torpedo. She had been promised, apparently by a committee aide, that her name would not emerge in the proceedings. Surely, then, her charges, made at the last minute against a man she had expressed admiration for as recently as August, and soon to be confirmed to one of the highest positions in government, had a vindictive quality rarely seen in American public life. Ideological combat can indeed be the source of such animus. The mere desire to do one’s “duty as an American citizen” by recalling 10-year-old obscene comments seems an inadequate motive.

Possibly there was some truth to her allegations, but if so, his comments may have been intended, and at the time taken by her, in a much more jocular, bantering way than she alleged in her testimony. This would explain why she did nothing, followed him to the next job, remained on good terms with him, invited him to her apartment, drove him to the airport and so on. If this is correct, he presumably decided to deny the whole thing, knowing that getting into the nuances of such discussions would not work to his advantage in the atmosphere of the televised hearings.

The irony is that, in ruling questions about her differences with Thomas on the abortion issue out of order, Biden gave the appearance of coming to the rescue of Hill. It is possible, however, that he unwittingly saved Thomas. For if she had gone on to testify that they had discussed Roe vs. Wade, the question on senators’ lips would not have been whether she was a perjurer, but whether he was.

In any event, with Justice Thomas now replacing Thurgood Marshall, it is likely that at some point Roe vs. Wade will be overturned. If so, the electorate will find out what few now seem to realize--that state legislatures will then be permitted to pass anti-abortion laws, not that abortion will henceforth become illegal by decree of the Supreme Court. In the great majority of states, abortion will remain legal. At the federal level, the issue will be defused, and it may be possible to consider future nominees to the court in a calmer, more judicious atmosphere. Let us hope so.