Both sides say of Thomas: 'It's his to lose'

THE BALTIMORE SUN

WASHINGTON -- Judge Clarence Thomas, carrying with him what even his most vigorous opponents concede is a political advantage, sits down on Tuesday in front of America -- and a Senate committee -- to be tested as a nominee to the Supreme Court.

The nationally televised hearings of the Senate Judiciary Committee could be a severe test; Judge Thomas' opponents say they have the ammunition for that -- provided senators will use it. The challengers' aim: to show, by what Judge Thomas has said and written, that he is and will remain a constitutional radical -- unless he now thoroughly repudiates his own views.

But, in the face of that strategy, there appears to be quite a wide agreement that if the 43-year-old federal judge does even modestly well in explaining himself during three or four days of testimony, he will be on his way to the Supreme Court within a fairly short time.

A view expressed often these days and in the same words, even from his challengers, is, "It's his to lose." He has enough of an advantage going into this week's hearings, it is commonly suggested, to win Senate approval unless he gives it away by a seriously unsettling performance.

The core of that advantage, as seen here by political analysts, is the poignant personal life story that he will be able to fall back on, should the going get hard. If he finds some way, even if it is awkward, to avoid giving support to the image of a radical, his political advantage supposedly will buttress him. His adversaries say they are sure he has been coached to find ways to bring up his past. That past is focused vividly upon humble, painfully deprived beginnings as a poor black boy in racist Georgia four decades ago.

That is the way he has been defined, over and over again, by nearly every one of Judge Thomas' significant backers, from President Bush and the White House staff on down. And his backers suggest that it is a story that no one is going to be allowed to put aside, let alone forget.

The assessment of his handlers can be summed up simply: The repeated complaint against Judge Thomas is that his legal philosophy and his public record show he will be hostile to the rights of blacks and others disadvantaged in society -- including women -- but that complaint will be difficult to put over in the light of his personal background.

Labor Secretary Lynn Martin, for example, has said: "Clarence Thomas understands: He knows the inequities, the indignities, the insensitivity. . . . Does he understand what it is like to start off life at an immediate disadvantage? Does he understand what it is like to have to fight for a place at the table?"

Up against that, his challengers hope senators will place greater emphasis on what Judge Thomas has said and written as one of the country's most conservative and outspoken black figures, and on the threat his views supposedly raise to modern Supreme Court rulings in favor of the rights of blacks and women.

Past can also hurt

As one opposition leader, who asked not to be identified, put it: "There's an awful lot of material that can be the basis for questioning. I would be most surprised if the hearings turned into a pat-a-cake game." Another strategist asks: "How he is going to handle the things he has said? Is there a way he can answer, consistent with his past statements, that doesn't cause concern?"

There are some opponents who are very optimistic about the challenge. One, speaking on condition of anonymity, said, "He is either going to have to run from his record, or have a 'confirmation conversion.' I think that will be too hard a job. . . . We have a very good chance [of defeating him]."

The two areas that many challengers most want Judge Thomas to discuss are the right of privacy -- a general sort of unwritten right that can be the basis for creating a variety of other specific rights -- and abortion -- one of those rights. He has strongly criticized both.

The opposition wants him tested on those issues in view of his fervent embrace of "natural law" theory -- a theory that, critics say, Judge Thomas has used in ways that exhibit a deep hostility to privacy as any kind of constitutional right.

Natural law theoreticians believe that people have rights that come from God merely because they are human beings, and those rights exist, if at all, outside the Constitution.

His natural-law views, anti-Thomas strategists suggest, will be a more significant focus of the Senate hearings than will questions of race -- even more significant than Judge Thomas well-known opposition to programs that give blacks, minorities or women special advantages to cure past race and sex bias. Democratic senators, in particular, seem reluctant to press the "affirmative action" issue very far, and his opponents will not demand that.

While the nominee's challengers are prepared to concede that the Bush administration has been, as one of them phrased it, "absolutely brilliant" in its pro-Thomas strategy so far, they say that the focus now shifts away from clever strategy and from President Bush's popularity, and falls squarely on Judge Thomas.

What he does say between Tuesday and Friday in front of the senators and the TV cameras will settle how the 14 senators on the Judiciary Committee vote, sometime later this month, and that may go far to determine his fate in the Senate as a whole. Thus, the hearings are viewed as everything -- for the nominee, for his supporters and for the opposition.

The committee members, under pressure from the largest opposition to a court nominee since a huge coalition helped defeat Judge Robert H. Bork four years ago, are said to be feeling a fairly strong duty to draw out his views as best they can.

Opponents concede that it is possible that, in answering, Judge Thomas will be able to calm the worries of the broad civil rights combine that is fighting the nomination. If he does not, Judge Thomas might then face a defeat in the committee, or even a 7-7 split -- and either, strategists tend to believe, would be fatal to his chances.

Although every one of the 14 committee members is publicly uncommitted, as is the overwhelming majority of the 100-member Senate, three on the committee are believed to hold Judge Thomas' fate in their hands -- likely to swing the outcome one way or the other. They are Democrats Dennis DeConcini of Arizona and Howell Heflin of Alabama and Republican Arlen Specter of Pennsylvania.

Senator DeConcini has said it is "fundamental to me" that Judge Thomas not oppose privacy as a constitutional right. Mr. Heflin has said he wants to find out why groups like the National Association for the Advancement of Colored People oppose the nominee. And Mr. Specter has spoken favorably of Judge Thomas' chances, but has said any judgment before the hearings was "too early."

Target senators

Some of the nominee's supporters have estimated that, at this point, between 55 and 64 senators have indicated an intention to support him. But Ralph G. Neas, executive director of the Leadership Conference on Civil Rights and the principal lobbyist for the opposition coalition, has insisted that at least 65 senators are "truly uncommitted" and have vowed to stay that way until after the hearings are held.

The two sides in the contest are focusing much of their efforts on the same "target" senators: nine Republicans and seven Democrats:

* The three "swing" votes in the Judiciary Committee: Senators DeConcini, H ef lin and Specter.

* In the Senate, five southern Democrats -- all freshmen -- who will be up for re-election next year: John B. Breaux, Louisiana; Wyche Fowler Jr., Georgia; Robert Graham, Florida; Terry Sanford, North Carolina; and Richard C. Shelby, Alabama. Both sides are aiming a key part of their grass-roots campaigns at the constituencies of these senators, for whom the black vote back home is regarded as critical to their re-election.

* Nine Republicans, including Senator Specter, who voted to override President Bush's veto of a civil rights bill last year. One of them is almost certainly a lost cause to the anti-Thomas coalition: Sen. John C. Danforth of Missouri, Judge Thomas' former boss, long-time mentor, and almost constant companion around the Senate these days.

The other seven senators are John H. Chafee, Rhode Island; William S. Cohen, Maine; Pete V. Domenici, New Mexico; Dave Durenberger, Minnesota; Mark O. Hatfield, Oregon; James M. Jeffords, Vermont; and Bob Packwood, Oregon.

The men who will question Judge Thomas

The Senate Judiciary Committee, which opens televised hearings Tuesday on Supreme Court nominee Clarence Thomas, made up of 12 veterans of past fights over the court, one member with only limited experience in that area and one newcomer. Here are the members, by party in order of seniority, and the role each is likely to play in the review of Judge Thomas:

DEMOCRATS (8)

* JOSEPH R. BIDEN JR. -- 48, committee chairman, former lawyer from Wilmington, Del.; sometime presidential candidate . . . moderate to liberal in his views . . . will treat nominee with kindness and probably faltering attempts at humor . . . frets over being fair . . . very conscious of TV cameras . . . asks some tough questions, but hesitates to follow up . . . undecided on nominee, thought to be leaning FOR.

* EDWARD M. KENNEDY -- 59, former Boston prosecutor; sometime presidential candidate . . . very liberal . . . asks tough questions, with probably rambling follow-up . . . likely to try hard to avoid any appearance of personal attack . . . one likely leader of anti-Thomas effort, if one develops . . . .undecided, leaning AGAINST.

* HOWARD H. METZENBAUM -- 74, wealthy former Cleveland businessman . . . very liberal . . . asks very aggressive questions, with bulldog follow-up . . . may do nothing to disguise deep skepticism about this nominee . . . may lead an anti-Thomas move . . . likely AGAINST.

* DENNIS DeCONCINI -- 54, former Tucson lawyer, prosecutor . . . moderate to conservative . . . asks softly worded questions that sometimes bite . . . one of three pivotal votes on the committee; neither side likely to prevail without him; he may herald moderate Democratic leanings . . . completely undecided.

* PATRICK J. LEAHY -- 51, former Burlington, Vt., lawyer, prosecutor . . . moderate; keen on civil rights issues . . . asks pointed, lawyerly questions; not aggressive . . . may be visibly skeptical of nominee, waiting to be won over . . . undecided, thought to be leaning FOR.

* HOWELL HEFLIN -- 70, from Tuscumbia, Ala., former chief justice of Alabama Supreme Court . . . moderate to conservative . . . asks rambling questions, often larded with legal complexity and mixed with country lawyer stories . . . one of three pivotal votes; winning side probably needs him; he may indicate leanings of southern Democrats . . . completely undecided.

* PAUL SIMON -- 63, from Makanda, Ill., former newspaper publisher, state legislator, lieutenant governor, member of U.S. House; sometime presidential candidate . . . moderate to liberal, keen on civil rights issues . . . asks questions that tend to be opaque; prefers soft touch . . . likely to probe inner thoughts, beliefs, character . . . leaning FOR.

* HERBERT KOHL -- 56, wealthy Milwaukee businessman, owner of pro basketball team . . . moderate to liberal . . . has been through only one court nominee hearing (Justice David H.

Souter) . . . potentially one of toughest interrogators of Judge Thomas, with aggressive follow-up . . . probably undecided, may be leaning AGAINST.

REPUBLICANS (6)

* STROM THURMOND -- 88, from Aiken, S.C., former lawyer, state legislator, state judge; third-party presidential candidate . . . Senate's senior member . . . very conservative . . . reads questions written by staff directly from paper, seldom follows up . . . will not press nominee . . . certain FOR.

* ORRIN G. HATCH -- 57, former Salt Lake City attorney, sometime aspirant to Supreme Court seat . . . one of Senate's most conservative members . . . will act as one of nominee's principal defenders . . . likely to ask rambling questions to offset -- critical questioning by Democrats, help nominee recover from any setbacks . . . certain FOR.

* ALAN K. SIMPSON -- 60, former Cody, Wyo., lawyer, prosecutor, state legislative leader . . . No. 3 Senate GOP leader . . . moderate . . . will act as chief and sarcastic adversary to Democrats and to any anti-Thomas witness; chief protector of nominee . . . with Senator Hatch, likely to ask questions to "rehabilitate" nominee, if needed . . . weaves questions with stock of oft-told jokes . . . certain FOR.

* CHARLES E. GRASSLEY -- 57, former farmer from New Hartford, Iowa, state legislator, member of U.S. House . . . conservative . . . asks questions in gruff tones, but only seldom with hard bite . . . resents waffling answers, will press nominee to be direct . . . almost certain FOR.

* ARLEN SPECTER -- 61, former Philadelphia lawyer, state prosecutor, state attorney general . . . moderate to liberal . . . toughest inquisitor on the committee, with well-honed, penetrating questions, no-holds-barred follow-up . . . deeply interested in basic judicial, constitutional philosophy . . . one of three pivotal votes; will provide first sign of any trouble for nominee among Republicans . . . completely undecided.

* HANK BROWN -- 51, former Greeley, Colo., accountant, businessman, state legislator, city planner . . . freshman senator, first year on Judiciary Committee, no prior experience with court nominees . . . thought likely to follow closely constituents' wishes, sentiments . . . probably FOR.

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*Compiled by Lyle Denniston of The Sun Washington Bureau

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