Thomas: Marks the Start of Post-Civil Rights Era


Washington. -- The Clarence Thomas contretemps inaugurates the post-civil rights era. The primary significance of the Thomas nomination is its merely modest significance: it does not matter mightily to the course of the Supreme Court, and the court matters decreasingly to the solution of serious social problems.

Never before has there been such a disproportion between the controversy surrounding a judicial nominee and the probable consequences of his confirmation. Of the Supreme Court's 64 decisions last term involving substantial written opinions, only 11 were by 5-4 votes. Justice Marshall, whom Judge Thomas will replace, voted with the four-person liberal minority in six. Replacing him with a liberal rather than Judge Thomas would not alter the pattern of liberal defeats in this era when 5-4 liberal victories are rare.

When Robert Bork was nominated in 1987 to replace Justice Powell, who often was a swing vote in crucial decisions of the closely divided court, the court's composition hung in the balance, and Democrats could hope that the conservative era in presidential politics would end when the Reagan administration did. Today, however, political probabilities indicate five more years of a Republican administration, and actuarial tables indicate that the administration will have an opportunity to make additional conservative nominations. The court's shape is set for the foreseeable future.

Why, then, the sound and fury against Judge Thomas? What does it signify, about him and these times? One answer is that liberals, impotent in presidential politics, have been reduced to a merely blocking agenda, and to ideological grandstanding against the judicial consequences of their protracted irrelevancy presidential politics.

But the primary reason for fierce liberal opposition to Judge Thomas is that his nomination comes at a moment when the intellectual balance of American politics regarding social reform generally, and race in particular, is changing. The focus of thoughtful people is shifting away from the strategy of establishing new individual and group rights by litigation and judicial fiat and toward the political process of creating social settings that nurture character.

Never before has a Supreme Court nominee been so much defined by his persona -- by his biography more than his philosophy. Some previous nominees have carried powerful symbolic significance -- Justice Marshall, nominated in 1966, was the first black; Louis Brandeis, in 1916, was the first Jew. Judge Thomas' nomination is highly charged with symbolic meaning because of the relationship between what he is and what he thinks.

He is a product of remarkable upward mobility. He thinks there is only modest potential for judicial remedy of social ills, because courts are instruments of limited utility and because judges' powers, properly understood, are more narrow than many recent justices have thought.

The civil rights era, accurately described, featured attacks on legal impediments to black participation in the nation's civic and economic life. The era featured enactment of legislation opening access to schools, voting booths, workplaces and public accommodations. The defining principle of the era was that blacks and whites should be treated alike and as equals.

The moral and intellectual decline of the civil rights impulse was signaled in 1968 when the Kerner Commission, appointed in response to the urban riots, declared that blacks, unlike the immigrants who prospered in earlier times, could not achieve unassisted upward mobility because entry-level jobs were disappearing. That false prognosis bred a disastrous moral stance.

The prognosis was refuted, as Michael Barone of U.S. News & World Report notes, by the most prodigious job creation in world history. In the 20 years after the Kerner Commission the number of American jobs increased 50 percent and waves of Asian and Hispanic immigrants began rising through entry-level jobs.

The Kerner Commission's moral stance was, implicitly, that blacks should be treated as a crippled community, as dependent wards of a government dispensing racial preferences and other group rights and entitlements. Today's civil rights lobby, which is leading the charge against Judge Thomas, is composed of people comfortably situated as brokers of these benefits.

Whatever the reason why a majority of black babies are born to single women, the reason is not the economy's failure to produce jobs. And whatever the cure for this crisis of family decomposition might be, the cure is not more litigation about individual rights.

Laws can contribute to the creation of the complex social ecology of nurturing families and civic habituation. But that is primarily the business of political policy, and of persuasion, not of the adversarial clash of competing claims to rights, resulting in judicial fiat.

The fierce contention about Judge Thomas' confirmation reflects the unwholesome centrality of courts in America's recent

governance. The importance of Judge Thomas is that he knows better.

4*George F. Will is a syndicated columnist.

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