Two Democrats on Senate panel oppose Thomas


WASHINGTON -- Two Democrats on the Senate Judiciary Committee came out yesterday against Supreme Court nominee Clarence Thomas, increasing the prospect of a tie vote in the committee and raising the hopes of his opponents.

Democratic Sens. Howell Heflin of Alabama and Herbert Kohl of Wisconsin said in separate Senate speeches that they oppose Judge Thomas as successor to retiring Justice Thurgood Marshall.

Mr. Heflin's opposition was particularly significant, since he is the first conservative in the Senate to oppose the nominee and is himself a former judge. The Alabamian noted in his speech that "I support a conservative court."

But, he said, he had "many doubts" after hearing Judge Thomas' five days of testimony.

Other Southern Democrats considered to be conservatives or moderates might be influenced by his vote.

Judge Thomas did make some gains among Southern Democrats yesterday, picking up the support of Sen. Sam Nunn of Georgia and Sen. John B. Breaux of Louisiana. Mr. Nunn had been expected to vote for the nominee, a native of Georgia whom Mr. Nunn introduced to the committee. Mr. Breaux's likely position had been unknown.

Mr. Heflin, in explaining his opposition, told his Senate colleagues: "The court is too important; I must follow my conscience and the admonition -- 'When in doubt, don't.' "

Mr. Kohl, although expressing his hope that the nominee, if approved, would become "an outstanding justice," said his main complaint was that Judge Thomas "failed to demonstrate the level of judicial excellence which ought to be required on the Supreme Court."

Both senators were sharply critical of Judge Thomas' testimony, which revealed major differences between what he described as his current judicial views and the public criticism he had leveled in the past at much of the modern Supreme Court's civil rights rulings.

The two lawmakers, despite their opposition, said they expected the full Senate to confirm Judge Thomas' nomination. Mr. Heflin said that discussions with his colleagues indicated that there are not many doubts "that he has the votes to be confirmed."

Judge Thomas' main sponsor, Sen. John C. Danforth, R-Mo., also said yesterday, "I have no doubt that Judge Thomas will be confirmed."

Predictions like that drew challenges from within the broad coalition of civil rights and women's rights groups fighting the nomination. Elliot M. Mincberg, legal director of People for the American Way, a major organization in that coalition, described Mr. Heflin's decision in particular as "enormously significant; it makes the defeat of the nomination possible."

While conceding that defeat would be "a very tight and difficult job," Mr. Mincberg said that the Heflin announcement was "a clarion call for senators to look very seriously at his [Judge Thomas'] record." Mr. Mincberg added that the prospect of a tie vote in the Judiciary Committee would send a signal to the Senate that "this is serious stuff."

With the two committee Democrats joining the opposition to the 43-year-old black judge yesterday, only two Democrats --

Chairman Joseph R. Biden Jr. of Delaware and Sen. Paul Simon of Illinois -- remained publicly uncommitted.

Mr. Simon's office said that the senator had reached a tentative decision but wanted to "review it overnight." His staff would not reveal it.

The committee meets this morning to cast its vote, and speculation yesterday was that both Mr. Biden and Mr. Simon would join the opposition -- partly influenced by Mr. Heflin's vote.

If that does occur, the committee would then split 7-7. Even in that event, the panel would still send the nomination to the full Senate for final action, probably next week or the following week.

Within the Judiciary Committee, all six Republicans favor the nomination, as does one Democrat -- Sen. Dennis DeConcini of Arizona. Five Democrats on the committee have now taken public positions or given private hints they are opposed. That means that the outcome will hinge on the votes of Mr. Biden and Mr. Simon.

The arithmetic in the full Senate appears to favor the nominee. He is expected to win all or nearly all the 43 Republican votes and has already gained promised votes from five Democrats.

If he does get all the GOP votes, plus the votes of those five Democrats -- Senators DeConcini, Nunn, Breaux, David L. Boren of Oklahoma and J. Bennett Johnston of Louisiana -- he would then have 48 and thus would need to attract only three other Democrats to get the 51-vote majority needed if all 100 senators vote.

The Supreme Court begins its new term Oct. 7, but it is now unclear whether the final vote on Judge Thomas will be taken before then.

Justice Marshall, although definitely planning to retire, has continued to take part in the court's actions during its summer recess. He said on June 27 that his retirement was to take effect "when my successor is qualified" -- which, in this sense, means having final Senate approval and a formal commission signed by the president.

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