Thomas will win or lose on image as a moderate

THE BALTIMORE SUN

WASHINGTON -- Judge Clarence Thomas' nomination to the Supreme Court will be put to a vote soon in the Senate Judiciary Committee with the outcome hinging on whether 14 senators believe his self-portrait: the image he sketched of a moderate, centrist justice.

After a summer of being depicted regularly as a radical right-wing thinker with a hostile grievance against much of modern civil rights law, Judge Thomas verbally drew a different image of his own in five days of testimony before that committee.

It was a far less controversial portrait of a future justice, one whowould have "no agenda" to start or who would even give significant support to a sweeping "far right" revolution in the law.

The problem for the senators is that there was almost nothing in Judge Thomas' record before he became a federal appeals judge to suggest that he would be as moderate and cautious as his testimony suggested he would.

Some members of the committee made clear that they had deep doubts that the past and the present could fit together at all, and thus the committee and the full Senate wasleft with the choice of accepting what he said in the witness chair or what he had said in speeches and in writings over the past half-decade.

Those skeptics were Democrats.

Republicans on the committee as a group appear ready to accept Judge Thomas as a Supreme Court justice without proof that he would be more moderate than his past implied he would.

When the committee votes, probably later this week, the nomination would be rejected only if a majority concludes that his moderate self-portrait does not even come close to depicting the kind of justice he would turn out to be. So far, there is no evidence that a majority harbors those doubts about the 43-year-old black judge.

Judge Thomas, insisting that he was presenting to the committee "the real Clarence Thomas," gave many answers that implied clearly that he would be comfortable as a justice taking moderate and sometimes even liberal positions on major constitutional controversies.

Parts of the judicial portrait emerged, line by line, in testimony spread over his five days in the witness chair as senators sought to draw him out. He took a good many positions on issues that he would have to face on the Supreme Court, and many of them -- if actually taken as a justice -- would align him more closely with the more moderate of the court's dominant conservative bloc of justices.

Although he often sought to surround the positions with qualifications so that he would not feel bound by them as a justice, his answers did portray him as considerably less conservative than Justice Antonin Scalia. Justice Scalia is widely acknowledged to be the court's most conservative member and the one most ready to overrule a string of rights decisions -- including Roe vs. Wade.

If Judge Thomas does join the court, he is likely to be drawn quickly into an internal dispute there over casting aside, or retaining, a possibly long list of modern precedents, particularly ones dealing with individual rights.

A constant theme of Judge Thomas' answers, when asked about that ongoing conflict, was that he would hesitate long before voting to overthrow a lot of prior rulings, even when there clearly was a majority of votes available to do so.

He spoke approvingly of a recent dissent by Justice Thurgood Marshall, whom he would succeed, against overruling precedents "simply because you have the votes." That, the nominee added, "is not a basis for doing it."

A moment later, when asked pointedly if he agreed with the Marshall opinion, he retreated, saying that "I was certainly affected by it." But then he volunteered that judges "should guard against making decisions as judges based on the number of votes we have" on one side.

When Sen. Patrick J. Leahy, D-Vt., took him through a series of steps that a justice might take before casting aside a precedent, fTC Judge Thomas went along, agreeing with each step. Along the way, he declared -- clearly and repeatedly -- that rulings should not be overturned just because a judge was convinced they were wrong.

Sometimes when he talked about specific constitutional controversies, the answers he gave were fairly bright outlines of a moderate justice.

He declared directly that he believes the Constitution assures married couples a broad right of privacy against government regulation of their personal lives within the marriage and family; he disagreed with a 19th century decision saying that women should be confined to the role of wife and mother; he said that the First Amendment does protect expression other than "pure speech," and thus extends to conduct that is done to express a political or social message; he embraced the current controversial tests the court uses to stop race or sex discrimination; hesaid the Constitution protects individuals' rights more than it does economic or property rights; he disagreed directly with a controversial suggestion that "natural law" theory could be used to outlaw all abortions.

Even when he took an explicitly conservative stance, as when he said flatly that he would have no "philosophical" qualms about upholding a death sentence "in appropriate cases," he added a moderate thought, as he did in suggesting that individuals who face a potential death penalty must be assured "all of the available protections" in law.

L The judge hinted at moderate positions on some other issues.

He said he was "very skeptical" of Justice Scalia's view that no new constitutional rights should be recognized unless a right had existed in very specific form in the nation's history and traditions; he urged caution in applying Justice Scalia's view that states may enforce general laws in ways that interfere with religious practices; he came close to embracing the view of Justice Sandra Day O'Connor that the Constitution bans government from taking steps that seem to endorse religion; he said he would have "deep concerns" if the government used financial subsidies to tell people how to conduct their lives; he said the process of locating new rights in the Constitution's general promise of "liberty" was not "frozen in time" and had to be kept up to date; he said the court should not move "too fast" to take away state prisoners' right to challenge their convictions in federal court.

On two issues, the judge gave a variety of answers, leaving his position quite unclear: he implied that he might favor a right of privacy in sexual matters for unmarried individuals but left in doubt the constitutional theory by which he would do so, and he said he favored looking at "all avenues" to bring minorities and women into jobs and other opportunities but indicated he retains his long-standing opposition to preferences based directly on race or sex.

Although a court nominee ordinarily makes no promises and ordinarily is not asked for any by senators, Judge Thomas was asked for a judicial promise on the very issue on which he regularly chose to say the least: abortion. He gave it.

It came on his third day on the stand, after he had refused scores of times to say whether he thought women should have a right to an abortion and whether such a right should exist in the Constitution.

Sen. Alan K. Simpson, R-Wyo., one of Judge Thomas' main supporters on the committee, asked: "Do you promise this committee to consider the abortion issue, as you face it on the court, with an open and equitable and fair mind, and with sympathy and compassion for all who are involved in that terrible decision?"

The nominee replied: "I would not only make that promise on this important issue, not only to this committee, but, if confirmed, to the American people and to myself. It's my solemn oath. I cannot sit as a judge if that is not the way that I proceed on those cases."

He then added: "And that is a promise that I take very deeply and understand and appreciate and feel strongly about on all cases, that I approach them with an open mind and, for the individuals involved, with an open heart."

There was nothing there to hint how he would cast his vote if the court does decide in the future to reconsider Roe vs. Wade, the 1973 abortion ruling. That clearly was not his purpose, or Mr. Simpson's. The judge was intent on leaving with the committee a self-portrait, and that promise fit that purpose.

His advisers, in fact, wanted that self-described image to be strong enough that it would last through three days of often deeply critical testimony by witnesses who would follow him to ++ the hearings.

And, pro-Thomas senators candidly told reporters, his sponsors

wanted the image to be focused upon him as a judge, to get senators' attention away from his role in the Reagan and Bush administrations.

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