Strategies take shape in battle over Thomas Senate hearings begin next week

THE BALTIMORE SUN

WASHINGTON -- One side is applauding the man. The other side is criticizing his record. And both sides are aiming at the folks back home.

Thus the battle lines have been drawn in the struggle over Senate confirmation of Judge Clarence Thomas, President Bush's nominee to become a justice of the Supreme Court.

With sides chosen and all issues apparently on the table, the strategies of the coming fight are unfolding.

Supporters of the nominee's confirmation are organizing their campaign around his personal attributes and history -- the Clarence Thomas who rose out of poverty in Pin Point, Ga., overcame the racial barriers of the South to become a federal appeals court judge and who is now, at 43, the president's choice to succeed to the Supreme Court seat of the legendary Justice Thurgood Marshall.

"Our biggest asset is Judge Thomas himself," said conservative activist Gary Bauer, once a domestic affairs adviser to President Ronald Reagan. Mr. Bauer is coordinating the efforts of a quickly set up network of organizations called Concerned Citizens to Confirm Clarence Thomas.

CCCCT is one of several pro-Thomas networks that have the support and power of the White House. A number of Bush aides are coordinating the overall campaign on behalf of the president's nominee.

The anti-Thomas side is bombarding Judge Thomas' record. It is accusing him of failing, as chairman of the U.S. Equal Employment Opportunity Commission and earlier as assistant secretary of education for civil rights, to enforce the nation's laws against racial and gender discrimination.

Further, he is accused of holding judicial views that would turn back the clock of the nation's policies ranging from anti-discrimination to abortion.

Judge Thomas has "too often allowed his personal opinions to interfere with his constitutional and statutory responsibilities to enforce civil rights laws," said Ralph G. Neas, executive director of the Leadership Conference on Civil Rights.

The lobbying coalition of 185 organizations led the spectacularly successful campaign to deny a Supreme Court seat to Robert H. Bork in 1987.

The anti-Thomas effort is organized in much the same manner as the Leadership Conference's campaign against Mr. Bork and includes many veterans of that campaign. It's all spelled out in "People Rising," a book by two admirers of the anti-Bork campaign that amounts to a virtual how-to manual on defeating nominees for the Supreme Court.

The anti-Thomas strategy was conceived in Washington and is being directed from here, but it is aimed primarily at the constituencies of members of the U.S. Senate. As in the Bork campaign, Mr. Neas believes that senators -- particularly those whose margins of victory rely on black voters -- will vote on the Thomas confirmation with their ears cocked to what constituents have to say about the judge.

In "People Rising," Mr. Neas was quoted as saying:

"We made a commitment that the grass-roots effort would be the centerpiece effort of the entire campaign, and we went out and got money to finance it from [Leadership Conference] member organizations. Eventually, we had operations in 43 of 50 states."

Mr. Neas generally is reticent about his organization's strategies this time -- "Why give anything away to the other side?" -- but admits that once again a grass-roots effort will be the Leadership Conference's top priority.

This time he may have a problem. There is distinctly less unanimity of opposition to Judge Thomas among black and civil rights organizations within the Leadership Conference -- and in the black community in general -- than there was to Judge Bork.

The National Association for the Advancement of Colored People is opposing Judge Thomas' confirmation, but only after considerable debate and turmoil within its board of directors.

At least three major black-affairs organizations have decided to withhold any stance on Judge Thomas until he testifies before the Senate Judiciary Committee at hearings scheduled to begin Sept. 10. Those organizations are the National Urban League, the Southern Christian Leadership Conference and the National Council of Negro Women -- all members of the Leadership Conference's executive council.

Meanwhile, Robert Woodson, a black conservative maverick who has created a pro-Thomas network of predominantly black organizations -- Americans for Self-Reliance -- cites with glee polls showing that 57 percent or more of the nation's blacks favor Judge Thomas' confirmation, while less than 20 percent oppose him.

In the Thomas confirmation battle, one civil rights leader said, "race has complicated the equation."

The pro-Thomas forces appear to be operating under multiple commands, with White House aides attempting to coordinate the effort more than direct it. One top White House coordinator is Kenneth Duberstein, a one-time aide to President Reagan and now a Washington political consultant, who was brought in to coach Judge Thomas for his testimony before the Senate Judiciary Committee. Another is Fred McClure, Mr. Bush's liaison to Congress.

One task of other White House aides is offering advice to pro-Thomas forces on how to avoid the errors made by the Reagan administration in the Bork affair -- at least some of which were an underestimation of the breadth, strength and fast pace of the Leadership Conference's campaigns.

To some extent, the White House's role seems to have been born out of necessity more than desire. Some pro-Thomas network organizers make it clear that they want to stand at arm's length from Mr. Bush's staff -- indeed, at arm's length from one another.

For example, Mr. Bauer of Concerned Citizens to Confirm Clarence Thomas said that while the overall pro-Thomas coordinating effort was coming from the White House, he was "not in any regular contact" with the president's staff. Mr. Woodson says he has been invited to organizational meetings called by Mr. Bauer but has not attended them.

Main issues in the Thomas nomination

A Supreme Court nominee who draws heavy opposition -- as Clarence Thomas has -- must satisfy a Senate majority on issues ranging from the future of the Supreme Court in American society to the nominee's own legal views and personal traits. These are the main issues that have emerged so far over the nomination of Judge Thomas:

THE COURT'S FUTURE

Issue: Will one more conservative vote make any difference on court already dominated by six conservative justices?

Critics say: Yes. The six conservative justices often see things differently, so any addition to their ranks will make it easier to assemble a five-justice majority for the most extreme conservative view on any given dispute.

Defenders say: President Bush is entitled to strengthen the conservative bloc with as many appointments as he can make. No one knows for sure, though, how Judge Thomas will vote on any issue.

Issue: What are the main issues upon which Judge Thomas' vote could make a real difference?

Critics: Job rights for minorities and women; women's right to abortion; the scope of a constitutional "right of privacy"; the rights of fetuses; the future of school and college segregation by race or sex.

Defenders: Whatever issues reach the court, no one can say what Judge Thomas' vote would be and therefore what his impact would be. Judge Thomas is a fair-minded jurist who can be counted upon to be sensitive to all sides.

Issue: Will Judge Thomas vote to overturn Roe vs. Wade, the 1973 abortion decision?

Critics: He has criticized the Roe decision and the right of privacy upon which it is based and has spoken favorably of a theory that a fetus always has a "right to life." Only four of the current eight justices may be ready to vote to overturn Roe, so Judge Thomas could be a fifth and deciding vote for that.

Defenders: While it is Bush administration policy to seek the overruling of the Roe decision, Judge Thomas' nomination was not based on that policy. His public statements bearing on the Roe decision cannot be viewed as an indicator of how he would vote as a justice on that question.

Issue: Will Judge Thomas follow Justice Thurgood Marshall as a staunch defender of the rights of blacks?

Critics: Nearly everything Judge Thomas has said publicly over the past four years and his record as a federal official working on minority issues indicates that he believes Justice Marshall and the court were often wrong in the ways they protected the rights of minorities.

Defenders: His own personal background, as a victim of poverty and racism, will bring to the court a strong sensitivity on individuals' rights. He has said that he personally has benefited from the civil rights movement and from the work of Justice Marshall. He does believe that blacks can do much for themselves through self-help.

Issue: Will Judge Thomas be acceptable to some senators and to blacks only because of the fear that Mr. Bush would pick someone less acceptable if he were rejected?

Critics: He is not acceptable, and each nomination must be considered on its own merits.

Defenders: President Bush picked Judge Thomas after carefully reviewing a number of minority and female candidates and found him the best available.

PERSONAL TRAITS

Issue: Was Judge Thomas picked because he is black, to preserve the "black seat" Justice Marshall was the first to hold? Was this a "quota" nomination?

Critics: President Bush cynically picked Judge Thomas because his race, knowing that this would get black support and make liberals uncomfortable. It is good to have minority justices, but they must be more sensitive than Judge Thomas to minority rights.

Defenders: The president regards Judge Thomas as the best-qualified nominee. Mr. Bush says he resents any suggestion that the nominee was chosen to meet a "quota." But Mr. Bush believes that it is good for minorities to have opportunities to be on the court.

Issue: Is Clarence Thomas qualified to sit on the Supreme Court?

Critics: He has less than a year and a half of experience as a federal judge, and his most significant prior service as a government official was confined to issues of minority rights in education and jobs. He often defied the law in those jobs. He has written no significant opinions as a federal judge. The American Bar Association's divided vote to find him "qualified" is the most lukewarm ABA support received by any of the past 23 nominees, going back to 1955.

Defenders: The American Bar Association, an independent organization, has found him "qualified," which means to the ABA that he has "outstanding legal ability and wide experience." His experience as a lawyer and government official is more extensive than that of most of the justices now on the court.

Issue: Does his background tell anything about the kind of justice he would be?

Critics: Judge Thomas has accepted race preferences and special advantages to get ahead in life yet is unwilling to have other blacks share those opportunities. He has forgotten his own humble origins, and he has shown insensitivity to the plight of a sister when she was on welfare.

Defenders: He pulled himself up by his own bootstraps, despite the most severe adversity as a poor black child. He has never forgotten what it was like to be poor and to be a victim of rampant race bias. He has a unique opportunity to share his special background with other justices, to make them as sensitive as he is to people who are deprived of opportunity through no fault of their own.

LEGAL PHILOSOPHY

Issue: Are his legal and constitutional views "out of the mainstream," far more conservative than those of most Americans? Is he "another" Robert H. Bork, the deeply conservative court nominee rejected four years ago?

Critics: Judge Thomas' views are at the most extreme end of American conservative thought. He has identified himself with the most aggressive opposition to most of modern constitutional law and has given every indication that he is at least as "radical" as Mr. Bork was.

Defenders: President Bush believes that Judge Thomas' views are much closer to the American "mainstream" than are those of his liberal critics. The nominee will be a disappointment to liberals, but that is because he does not share their view that judges should run "amok" with their power.

Issue: What does it mean that Judge Thomas believes in "natural law" and "natural rights"? Does that tell anything about how he would vote as a justice?

Critics: The natural law/natural rights approach to the meaning of the Constitution means that people would have rights only if the rights existed already at the time America was founded two centuries ago, or only if a judge believed that God had ordained those rights. Thus, women probably would be considered to have few, if any, rights because they are supposed to devote themselves to their "natural" roles of wife and mother.

Defenders: Judge Thomas' discussion of natural law indicates that he believes it would be a check upon runaway government and runaway courts. He sometimes has used natural law theories in speeches merely as a rhetorical device. His views on this subject are no indication of how he would vote as a justice.

Issue: Does Judge Thomas believe that the Constitution includes a general right of privacy that can be the basis for the courts to recognize other rights?

Critics: He has bitterly criticized the Supreme Court's privacy rulings and has called one of the most basic decisions -- Griswold vs. Connecticut, in 1965, recognizing a right of married couples to use birth control -- an "invention." His open hostility to the Roe vs. Wade decision and its privacy basis, together with his natural law views, indicate that he would vote to undo all or nearly all of the modern court rulings on family and personal privacy.

Defenders: Judge Thomas is very much opposed to the judicial creation of rights that do not exist in the Constitution or in the Declaration of Independence, the founding documents of the U.S. government. He has given no indication, however, of how he would vote on any privacy question.

Issue: Where does Judge Thomas stand on the rights of blacks and other minorities, including the elderly?

Critics: In two government positions requiring him to make policy on minority rights (in the Department of Education and the Equal Employment Opportunity Commission), he flouted the law on race and sex bias, put an end to effective government remedies for discrimination in employment and education, and refused to process thousands of serious cases of age bias. In his public speeches, he has denounced bitterly many of the Supreme Court's civil rights rulings since Brown vs. Board of Education in 1954 and has even questioned the constitutional basis of the Brown decision. He has left no doubt that he is opposed to all forms of "affirmative action" -- government and private programs of race or sex preference to make up for past bias.

Defenders: Judge Thomas is firmly against any form of discrimination against blacks and other minorities, because he believes that the Constitution makes all people equal. His own personal history as a victim of racism makes him especially sensitive to the rights of other victims. He supports government programs to aid minority people who have been the direct victims of bias or prejudice. He does not support favoritism for individuals solely because they are members of one race or one gender. His leadership of the EEOC was marked by efficiency and sensitivity; the commission was a bureaucratic mess when he took over, and he personally gets the credit for straightening it out, making it a more effective federal agency.

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