It is difficult at this point to see how President Bush can lose politically on his nomination of Federal Judge Clarence Thomas for the Supreme Court. Even if Senate Democrats block confirmation of this black Republican jurist, they would merely open the way for appointment of a white or Hispanic nominee who would be equally conservative and perhaps lacking in the racial sensitivity Judge Thomas learned growing up poor and segregated in Georgia.
The harsh truth is that Democrats find themselves powerless to prevent the increasing rightward drift of the court. If they want to move the court in more liberal directions they will have to start winning presidential elections. And to do that, ironically, they will have to move away from liberal positions voters have repeatedly rejected.
Take affirmative action, the most clearly defined issue in the Thomas nomination. The Bush administration, in opposing what seems to us a perfectly reasonable bill to curb discrimination in the workplace, has cynically hammered on the theme that it opposes quotas. It is a popular view and one, incidentally, that Judge Thomas has supported publicly and often. "I emphasize black self-help, as opposed to racial quotas and other race-conscious legal devices," he has written.
Where Democrats might find some political advantage is on the contentious question of abortion. Most polls indicate most Americans favor a woman's right to choose and, contrary to a recent court decision, to obtain unfettered advice from doctors even when they are getting publicly funded treatment. So it comes as no surprise to hear Sen. Howard Metzenbaum, D-Ohio, vowing to vote against Judge Thomas if the nominee, in David Souter fashion, refuses to spell out his views.
This is the stuff that promises to make Senate Judiciary Committee confirmation hearings this fall the political event of the year. Judge Thomas will have considerable precedent on his side if he refuses to commit himself on matters before the court. But he will have to brave the wrath of many women's rights groups, who will have little difficulty opposing his nomination.
Civil rights organizations are in a far more awkward position. It will not be easy for some of them to challenge the second African American ever to be nominated for the court, even if he is the ideological mirror image of the first such nominee, retiring Justice Thurgood Marshall. Like everyone else, they cannot be sure how Judge Thomas, an independent thinker, will decide crucial cases once he is on the court.
Nevertheless, Jesse Jackson's rejection of the Thomas nomination is just the beginning. Blacks will be contesting with blacks as never before, and a lot of myths will be destroyed in the process. The huge majority of African Americans will continue to vote Democratic, but if Judge Thomas is confirmed, Republicans may have enhanced the legitimacy of black conservatism.