Thomas refuses to discuss constitutionality of abortion


WASHINGTON -- Supreme Court nominee Clarence Thomas put one constitutional issue -- abortion -- totally out of bounds yesterday as he discussed with senators his views on a lengthening list of disputes that now rage among the justices.

In a day of sometimes tense sparring with both Democrats and Republicans on the Senate Judiciary Committee, federal appeals Judge Thomas took positions on the kind of privacy that the Constitution protects most, on the way to protect religion from government interference, on the way to judge inequality under the Constitution and on the court's power to overrule civil rights rulings.

But when asked, as he was nearly a score of times, about whether he thinks the Constitution includes a woman's right to seek an abortion, he said every time that it would compromise his "impartiality" to answer.

The most he would say was that he was not "predisposed to rule one way or the other on the issue of abortion, which is a difficult issue."

In his second day in the committee witness chair, Judge Thomas went even further than he had the day before to dismiss most of his past criticism of modern court rul

ings as mere policy commentary and said repeatedly that he would not carry those views with him if the Senate approved him for the court.

In tones that at times almost seemed pleading, Judge Thomas said that he had left all those views behind when he became a federal judge last year and likened himself to a "runner" who has to "strip down" in order to perform successfully.

It was unclear what impact the nominee's testimony was having on the 14 senators on the committee. After yesterday's session, Sen. Paul Simon, D-Ill., said of the day's developments: "I don't think any votes were changed, one way or the other."

But the wide distance Judge Thomas was placing between his policy expressions of the past and the things that he said he now would consider as a judge left two members of the committee openly skeptical.

Sen. Herb Kohl, whose turn to question the judge comes this morning, told reporters at the close of yesterday's session: "He took major parts of his past and said, 'Forget it.' He is saying that we are to 'disregard major parts of what I've done.' "

The Wisconsin Democrat said that that "will be a factor" for some senators when they decide how to vote. Judge Thomas "needs to explain himself more fully. He needs to give more careful, more candid explanations," Mr. Kohl said.

Sen. Howell Heflin, D-Ala., wondered aloud whether the nominee was undergoing a "confirmation conversion." He told Judge Thomas: "That can affect the evaluation of members of the committee as to integrity and temperament."

Outside the room, Mr. Heflin visibly bristled at a reporter's suggestion that he had only been joking.

One of the nominee's key GOP supporters on the committee, speaking on condition of anonymity, said that Judge Thomas would suffer as a result of seeming departures from his earlier views only if senators were convinced that those were "clear deceptions." The senator said they were not of that character.

Although Judge Thomas succeeded throughout the day in avoiding any hint of his views on abortion as a constitutional question, he did offer a "personal" commentary about it at one point.

When Sen. Howard M. Metzenbaum, D-Ohio, expressed worry over a return to "brutal and illegal abortions," should the court overrule Roe vs. Wade, the 1973 decision establishing an abortion right, Judge Thomas expressed concern for women who might face such a prospect.

Recalling that as a child he had heard "hushed whispers" about unsafe and illegal abortions, the nominee remarked: "If a woman had [been] subjected to the agony of an environment like that, on a personal level certainly I am very, very pained by that. I think any of us would be."

He repeated that "it would undermine my ability to sit in an impartial way" if he discussed abortion as a constitutional matter with the panel.

Outside in the corridor, the nominee's chief Senate sponsor, John C. Danforth, R-Mo., offered an explanation as to why abortion was being put out of bounds for discussion. The senator told reporters:

"Of all of the controversial matters that will come before the U.S. Supreme Court, Roe vs. Wade and the likelihood of its being revisited is like nothing else. . . . I think that it is a case by itself." No matter how many times the question is asked this week, Mr. Danforth said, Judge Thomas would decline to comment.

Mr. Metzenbaum and Sen. Patrick J. Leahy, D-Vt., made the most sustained effort to draw out Judge Thomas on the question. The nominee told Mr. Leahy that he had never debated the Roe decision with any acquaintance, did not remember discussing it as a law student and had no present position at all on it.

Mr. Leahy also pressed him on whether fetuses have a constitutional right to life, as conservative theorist Lewis Lehrman suggested in a magazine article that Judge Thomas once praised in a speech. Waiting an unusually long time before answering, the nominee said: "I can't think of any cases that have held that."

In discussing other constitutional disputes that currently divide the Supreme Court, Judge Thomas said:

* He believes the Constitution protects "marital privacy" as a "fundamental right" -- a position at least two current justices expressly reject.

* He had no difficulty with varying levels of protection for equality that the court has spelled out: the greatest for minorities, somewhat less for women, even less for others -- a position that at least one of the current justices thinks is wrong.

* He disagreed with a six-justice majority position at the end of last term: that the court should feel freer to overrule civil rights decisions than it should those involving economic and property rights. He said there should be no difference in the court's duty to respect its precedents.

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