Bush picks black judge for court Clarence Thomas has served in D.C. 15 months

THE BALTIMORE SUN

WASHINGTON -- President Bush picked a black judge, Clarence Thomas, yesterday to succeed retiring Supreme Court Justice Thurgood Marshall, but insisted the choice was not made because of race or to meet any quota.

Judge Thomas, 43, a conservative who has been a federal appeals court judge here for the past 15 months, "is the best qualified at this time," the president said in introducing the nominee on the lawn of his vacation home at Kennebunkport, Maine.

A top administration official said that Judge Thomas' name was on every list -- each growing shorter until it was down to two names -- since last Thursday when Justice Marshall, the only black ever to serve on the court, disclosed plans to retire.

The other finalist was Emilio M. Garza, 43, a federal appeals court judge from San Antonio, Texas, who was one of five Hispanic-Americans reviewed by top officials. Mr. Bush himself had suggested on Friday a look at minority candidates, as well as women.

If approved by the Senate, in what is likely to be a difficult and possibly prolonged test for Judge Thomas, starting with hearings in September, he would replace the 83-year-old Justice Marshall, the court's most liberal member, who said he will leave the court when a successor is approved to replace him.

The president told reporters: "I don't feel I had to nominate a black American at this time for the court . . . The fact that he's a minority, so much the better. But that is not the factor. . . . If credit accrues to him for coming up through a tough life as a minority in this country, so much the better."

Mr. Bush said he would "strongly resent any charge that might be forthcoming on quotas . . . I don't feel that there should be a 'black seat' on the court."

The nominee journeyed to Kennebunkport to be offered the job in a final way at midday yesterday, in a 15-minute, one-on-one meeting in the president's master bedroom. The president, however, had all but told Judge Thomas in a telephone call Sunday that the job was his, Mr. Bush indicated. The choice, he said, "was pretty well established" in the Sunday conversation.

Some of the president's remarks made it seem that Judge Thomas had had some hesitancy about being chosen to satisfy some "litmus test." Mr. Bush told reporters, without elaboration: "I had one or two points to make to him to see that he felt comfortable with them. I wanted to be sure that he knew they were from me, that there was no litmus test involved."

The Bush administration, like the Reagan administration, has made a point of picking Supreme Court nominees who would take a conservative view of judges' power to use the law to recognize new rights. It was unclear whether Judge Thomas wanted some assurance that he was not expected to vote in some specific way, to justify his being chosen.

The president said: "I told him . . . that he ought to do like the umpire, call them as you see them, and I'm satisfied he will."

One of the clearest tests facing any new justice is how to vote when the conservative-dominated court in the future ponders overruling major precedents. A bitter fight over that broke out among the justices at the end of its term last week. Judge Thomas' views on following, or abandoning, precedent are likely to be a major factor in questioning before the Senate Judiciary Committee.

In the next one or two terms, the court may face new tests of its willingness to overrule the basic decision in favor of a woman's right to seek abortion, to abandon a variety of rulings in favor of using race as a deciding factor in jobs and public benefits, and to alter or discard basic decisions banning prayer in the public schools.

Liberals in the Senate, and in activist private groups, reacted skeptically to the choice of the conservative to succeed Justice Marshall.

Sen. Howard M. Metzenbaum, D-Ohio, a liberal member of the Judiciary Committee, for example, said he was finished with "reading tea leaves and voting in the dark," not knowing how potential justices would vote on "the rights of women," and on the right to abortion in particular.

"I will not support yet another Reagan-Bush Supreme Court nominee who remains silent on a woman's right to choose and then ascends to the court to weaken that right," the senator said.

Although many Democratic senators had voted for Judge Thomas just last year to become a U.S. Circuit Court of Appeals judge, several warned him that they would be more skeptical if he were nominated for the Supreme Court.

Civil rights groups issued statements ranging from strong criticism of Judge Thomas' record to wait-and-see caution.

Judith Lichtman, president of the Women's Legal Defense Fund, said that his "record does not demonstrate a sensitivity to the concerns of America's working women . . . [or] a strong commitment to the concerns of people of color . . . [or] support for a woman's most fundamental right to make private reproductive decisions."

Benjamin L. Hooks, executive director of the National Association for the Advancement of Colored People, said his group would not take a position until reviewing Judge Thomas' record again, "in even greater detail" than last year, when he was placed on the appeals court.

Dr. Hooks said the NAACP had wanted "another African-American" on the court but added that "it should be someone who embodies many of the attributes Justice Marshall so ably articulated."

A key administration official actively involved in the process said yesterday that Judge Thomas was actively on every list considered and had never fallen out of favor in the process. When the list got down to four, Judge Thomas was on it along with three others on federal appeals courts: Judges Garza, Edith H. Jones and Laurence H. Silberman, according to that official, tTC who spoke on condition of anonymity.

Only Judge Garza was called in for talks with top White House and Justice Department officials, because "he was the only one we did not know. The three others were as well know to the administration as any three judges in America," the official said.

Judge Garza was brought up from San Antonio for those talks, the official said. It was "absolutely not true," however, that his name was floated -- as one government official here speculated privately yesterday -- as merely "a feint" in order to keep Judge Thomas' selection a secret or to make some political gesture to the Hispanic-American community.

In any event, when Mr. Bush walked out of his Kennebunkport house to meet reporters yesterday, Judge Thomas was a step behind him, ending all speculation.

Last year, when President Bush named David H. Souter to the Supreme Court, he did not get on the bench until a week after the term started because of the time the Senate process took.

One factor that might lead Senate Democrats to take a longer time with Judge Thomas is that Justice Marshall has indicated he would not start his retirement, and thus leave it short-handed, until a successor was approved. But Justice Marshall, who said he is having medical problems, indicated last week that he might reconsider that option.

Since Judge Thomas has been on the court only 15 months, he has left only a short judicial record for senators to pore over. In about 30 decisions, he has taken a "generally conservative" stance, according to an analysis of his work by a liberal monitoring group, the Alliance for Justice. "His decisions, overall, do not indicate an overly ideological tilt," that group concluded.

A major focus of the Judiciary Committee hearings thus may be Judge Thomas' performance during his seven years as chairman of the U.S. Equal Employment Opportunity Commission -- a period when civil rights groups complain that the agency was allowed to grow lax in enforcing job rights.

In addition, Judge Thomas has been an outspoken public critic of policies favoring assignment of jobs or public benefits on the basis of race and has a long record of public speeches, articles and letters to the editor on those themes -- material for close questioning by senators.

Four years ago, in an article explaining his notion that "race-conscious remedies" are "dangerous," he wrote:

"I was raised to survive under the totalitarianism of segregation, not only without the active assistance of government but with its active opposition. We were raised to survive in spite of the dark oppressive cloud of governmentally sanctioned bigotry. Self-sufficiency and spiritual and emotional security were our tools to carve out and secure freedom."

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