THE POLITICS OF THE COURT : HOW FALLOUT FROM THE THOMAS NOMINATION WILL AFFECT 1992

The Democrats got Dukakised again. Last week’s bloody battle over the nomination of Judge Clarence Thomas to the U.S. Supreme Court confirmed the stereotypes of the 1988 campaign. The Republicans are a bunch of hatchet men. And the Democrats are a bunch of wimps.

Had enough? Well, here’s the bad news: It’s not going to stop. In politics, you do whatever works. For Republicans, no-holds-barred, kick-’em-in-the-chops politics works. George Bush is President. Thomas is on the Supreme Court.

It works because Democrats don’t fight back. “I will not smear and lie just because they do,” said Sen. Patrick J. Leahy (D-Vt.), the Democrats’ chief interrogator on the Senate Judiciary Committee. Now there is a chorus of angry liberals saying, “Smear, lie, do something--don’t just stand there and take it.”

Actually, in the case of Thomas, the liberals were the first to get mean. On the eve of the scheduled confirmation vote, almost certain to go in Thomas’ favor, someone on the Democratic side leaked Anita F. Hill’s allegations of sexual harassment to the news media, hoping to blow the case wide open. It worked.

Republicans seized on the leak as evidence that the Democrats would stop at nothing to discredit Thomas. Sen. Orrin G. Hatch (R-Utah) called it “indiscriminate, mean-spirited mud-slinging” perpetrated by “slick lawyers” in league with “liberal interest groups.”

If that is true, then the liberal conspiracy to destroy Thomas was the worst organized conspiracy since the attempted coup in the Soviet Union. First, the Democrats fumbled the investigation. Then, they were embarrassed by the leak. Then, they failed to keep the hearings under control.

The Democrats learned a lesson: If you’re going to play hardball, you’d better have a game plan. The Republicans had a game plan: attack. Everyone, including Thomas, followed the script. The issue became her credibility, not his.

The smear campaign failed. But Hill still lost credibility. By the end of the hearings, Americans said they found Thomas more credible than Hill by a 2 to 1 margin. Among women, it was 5 to 3. This had less to do with Hill’s motivation than her behavior. People wondered why she maintained a cordial relationship with her alleged harasser. And why she, a Yale Law School graduate and official at Equal Employment Opportunity Commission, failed to report an act of harassment.

That, plus the fact that she didn’t seem to have suffered much. Hill’s poise and dignity may have worked against her. Her career had not been damaged. While she talked about her humiliation, her emotional devastation was less apparent than that of Thomas. He was the one who said, “I would have preferred an assassin’s bullet than the kind of living hell that they have put me and my family through.” He was the one who shook with rage and seemed on the verge of tears.

But what really clinched Thomas’ victory was his decision--with or without White House guidance--to do something that knocked the Democrats off their feet. He played the racial card. It was utterly daring and utterly brilliant. And, some said, utterly cynical.

Thomas called the hearings “a high-tech lynching for uppity blacks” and accused his opponents of playing into “the most bigoted, racist stereotypes that any black man will face.” Black support for Thomas shot up, from 54% before the hearings to 71% after.

Southern Democrats were the swing voters, as usual. Southern Democrats survive politically by getting solid support from black voters and a sizable share of the conservative white vote. When black voters turned against Judge Robert H. Bork in 1987, so did Southern Democratic senators, and that was the end of Bork. This time they had a nominee who was popular among conservative whites and even more popular among blacks. It wasn’t a hard choice. Seven of the 11 Democrats who voted for Thomas on Tuesday were Southerners.

When Republicans have played the racial card before--the Willie Horton ad in 1988, the quota issue in 1991--they used it to appeal to white backlash voters. This time, Republicans used it to appeal to blacks. And the Democrats, fearful of offending their core black constituency, did not know how to respond.

So they ended up offending a lot of women. Women’s rights leaders are enraged by what they regard as the Democrats’ betrayal. They are out for revenge.

They are vowing to create a blood bath at the polls in 1992. But only five of the 11 Democrats who voted for Thomas are up for reelection next year. Four are from conservative Southern states. The fifth, Sen. Alan J. Dixon of Illinois (“Al the Pal”), has a lot of money and no serious opponent so far.

But 15 GOP senators are up next year, and 14 voted for Thomas. Two are on the Judiciary Committee: Charles E. Grassley of Iowa and, the most delicious target of all, Arlen Specter of Pennsylvania, who played the role of chief prosecutor against Hill. Both Grassley and Specter will face serious opponents who have run for statewide office before. But how’s this for irony: Specter is pro-choice, and both his Republican primary opponent and his Democratic opponent are pro-life.

Two other Republicans had better watch out: John Seymour of California and Alfonse M. D’Amato of New York. Both voted for Thomas. Both are up for reelection next year. Both have weak bases--Seymour because he was appointed to his seat, D’Amato because he was investigated for ethics violations. Both represent states with a lot of liberal voters. And both may face well-known women opponents--Dianne Feinstein in California and either Elizabeth Holtzman or Geraldine A. Ferraro in New York.

The women’s rights movement may have lost on Thomas, but they achieved a partial victory last week. The hearings raised the nation’s consciousness on the issue of sexual harassment. Republican senators fell all over each other in their zeal to denounce the unspeakable horror of this crime. They will have the opportunity to demonstrate just how horrified they are when they vote on the 1991 civil-rights bill this week, which includes severe penalties for sexual harassment.

The hearings also raised women’s consciousness about their lack of representation in the political system. Many are calling Hill the Rosa Parks of women’s rights. Women are, after all, 53% of the electorate. But the gender gap usually works to the advantage of men--because men are more one-sided in their voting. In 1988, for example, women split their vote. Men voted for Bush by almost 3 to 2. If women voted as one-sidedly as men, Bush could be in trouble next year. With every Supreme Court decision limiting abortion rights, that gets more likely.

On the other hand, if feminists use Hill as a litmus test, they could have a problem. At the end of the hearings, according to a Gallup-CNN poll, Thomas had a 62% favorability rating. Hill’s rating was 35%. Among women, her rating was 36%. Among blacks, 31%.

Moreover, the Thomas episode gives the Republicans a powerful piece of ammunition to use against Congress. Bush won a war. The Democrats in Congress can’t even manage a hearing.

Meanwhile, the latest rage in Washington is coming up with proposals to reform the Supreme Court nominating process. After all, the Constitution says that the Senate should “advise” as well as “consent” on Supreme Court nominations. Maybe the President can get together with the Senate and come up with nominees of such stature and distinction that they are beyond controversy. Maybe the Senate can present the President with a list of five or 10 acceptable candidates.

Maybe not. There is a reason why Supreme Court nominations have become so controversial. It is the same reason why the country had to endure last week’s lurid spectacle. The reason is abortion.

Abortion is the slavery issue of our time. The Supreme Court is at the center of it. There are intensely committed minorities on both sides for whom no compromise is possible. One political party is pro-life; it has a lock on the presidency. The other political party is pro-choice; it has a lock on the Senate. The President cannot nominate a pro-choice candidate to the Supreme Court. The Senate cannot confirm a pro-life candidate. Yet, at this point, the issue cannot even be discussed in the hearings. And the nominee’s stature is beside the point. Even Felix Frankfurter would be scratched off the list if he had the wrong views on abortion.

Supreme Court nominations have become just as poisonous as political campaigns. In fact, they’re worse: They’re political campaigns with a single dominating issue that no one can discuss. So they become battles to the death with each side using every weapon available, including lies and smears.

Will it ever stop? Not until the abortion issue is resolved. In the case of slavery, remember, it took a civil war.