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Swearing-In of Clarence Thomas 10/18/91 [OA 8330] [1]
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Swearing-In of Clarence Thomas 10/18/91 [OA 8330] [1]
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Swearing-In of Clarence Thomas 10/18/91 [OA 8330] [1]
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Final copy
McGroarty/Nix
October 18, 1991
11:15 am
[THOMAS]
PRESIDENTIAL REMARKS: SWEARING-IN OF JUSTICE CLARENCE THOMAS
THE SOUTH LAWN
OCTOBER 18, 1991
2:00 PM
Welcome to the White House. / First a warm welcome to the
members of the Supreme Court -- Barbara and I join with you and
the nation mourning the loss of Nan Rehnquist, the wife of the
Chief Justice. // [[IF CHIEF JUSTICE REHNQUIST IS IN
ATTENDANCE: Mr. Chief Justice, may I say that Barbara and I and
our entire nation are thinking of you and your family as we mourn
0
the loss of your belived wife, Nan. ]] //
Let me also welcome the many members of Congress and my
Cabinet. / Friends of Clarence Thomas, who have worked with him
here in Washington -- and let me single out Senator Jack
Danforth, a man every American would be proud to call friend. /
The many members of Clarence Thomas' family here today: his
wife Ginnie and son Jamal. Clarence's mother, Mrs. Leola
Williams. His sister, Emma Mae Martin, and brother, Myers.
His cousins -- whether they're first, second, third or fourth --
all the aunts and uncles and friends, some of whom drove all the
way up from Pin Point, Georgia to be here this afternoon. 600
long miles -- but they would have driven 6000 miles to share this
proud day. //
People from far and wide -- from all walks of life, all
levels of education and income -- have come here today in
testament to the character of Clarence Thomas. / But what
2
brought you here is also something more: the power of the
American ideal -- the values of faith and family, of hard work
and opportunity. These are the values that unite us all -- that
give America meaning. //
America is the first nation in history founded on an idea:
on the unshakable certainty that all men are created equal. /
When we ask our Justices to swear allegiance -- to uphold the
supreme law of the land, we entrust to them not mere words on
parchment, but the living soul of a Nation. / Clarence Thomas
joins the distinguished ranks of jurists to whom we entrust this
sacred task -- who, in the stark and simple phrase of Chief
Justice Marshall, to tell us "what the law is." //
I said when I nominated Clarence Thomas that this man is "a
fiercely independent thinker, with an excellent legal mind, who
believes passionately in equal opportunity for all Americans."
Since then, the whole nation has learned that the passion and the
intellect and the independence of mind all spring from a single
source: an inner strength stamped on his character long ago,
when he walked the dirt roads of Pin Point. //
Clarence Thomas comes to the Supreme Court having worked in
the private sector -- having served in state government, and in
every branch of federal government. / Each position will serve
him well on the Court -- sharpening his vantage point on the many
questions that come before him. //
These are the man's qualifications. They are not the same
as his experience. //
3
Clarence Thomas knows first-hand the searing hate and sting
of segregation. He knows the cold face of indifference -- the
unthinking cruelty that tells some men and women that society
expects little of them -- and offers even less.
But Clarence Thomas would not be here today if there were
not more to his story. He has known his share of the joys of
life: The love of family, / the devotion of friends, / the kind
gestures from people committed to decency and fairness, to
justice and the American Dream. 11
Clarence Thomas has endured America at its worst -- and he
has answered with America at its best. // He brings that hard-
won experience to the High Court -- and America will be better
for it. //
So let me say to everyone here: Don't be overawed by the
solemnity of this moment. / Celebrate this day. See what this
son of Pin Point has made of himself. See how he makes us proud
of America -- proud of all that is best in us. / ///
In just a few moments, we will bear witness as the oath of
office is administered to our Nation's newest Supreme Court
Justice. Before we do, let me say on a personal level: America
is blessed to have a man of such character serve on its Highest
Court. //
Clarence Thomas -- Mr. Justice Thomas: congratulations. /
I now ask Justice Byron White to administer the oath.
# # #
White House News Summary
Thursday, Sept. 12, 1991
MEDIA COVERAGE OF THOMAS NOMINATION
WIRES
C.
Thomas,
1. Frustrated Democrats Press Thomas On Position Changes (AP)
2. (continued)
3. Thomas Says It's 'Irrelevant' Whether
He Has Opinion On Abortion (AP)
4. (continued)
5. Taking Sides: Trying To Get The Best Spin (AP)
6. (continued)
7. Nominee Says Past Views Won't Guide Future Judgments (AP)
8. (continued)
9. Thomas 'Pained' By Back-Alley Abortion (AP)
10.
(continued)
11. Thomas Faces Toughest Questioning Yet
In Senate Hearings (Reuter)
12. (continued)
TELEVISION
13. Thursday discussion with Nina Totenberg and Paul Duke
14. Wednesday evening network news
15. (continued)
NEWSPAPERS
Thursday, Sept. 12
Chicago Tribune
16. Senators Question Thomas' Inconsistency
Los Angeles Times
17. Column -- A Thomas Idea Could Energize Liberal Engine
(by Timothy S. Bishop)
Chicago Sun-Times
18. Column -- The Long And Short Of Thomas Hearing
(by Raymond R. Coffey)
19. Senators Dispute Thomas' Denial Of Abortion View
Hartford Courant
20. Thomas Controversy Echoes Debate On Bork
Philadelphia Inquirer
21. Column -- Our 'Aristocracy Of The Robe' Includes
Many Horatio Algers (by Howard G. Schneiderman)
22. Column -- PC Brigades Are On The Defensive (by Ronald James)
23. Thomas Holds Firm On Abortion, Denies Revising His Views
New York Post
24. Column -- Judge Thomas Deserves Sympathy, But
(by Jeff Greenfield)
25. Column -- Nominee Knows The Pain Of Poverty And Bigotry
(by Pete Hamill)
26. Thomas Ducks 'Yes' Or 'No' On Abortion
27. Poll: Most Minority Women Pro-Choice
Christian Science Monitor
28. Column -- Judge Thomas Is Locked In To Laissez Faire
(by James Boyle)
29. Column -- Background And Ability Qualify Thomas For Court
(by Stephen M. Shapiro)
30. (continued)
Baltimore Sun
31. Thomas Refuses To Discuss Constitutionality Of Abortion
32. Some Blacks In Congress Concede Post To Thomas
USA Today
33. Column -- The Thomas View Of 'Women's Work'
(by Julianne Malveaux)
34. Thomas Silent On Abortion
35. Focus Shifts To Record At Civil Rights Agency
36. Nominee Hits His Stride On Day 2
37. Lobbying Not As Heavy As In Bork Case
38. Friends Glued To TV In Pin Point, Ga.
39. Outside The Hearing Room, The Battle Of The Sound Bite
40. Thomas Rules In 'Redskins vs. Cowboys'
Washington Times
41. Editorial -- The Opponents Of Judge Thomas
42. Column -- Bridging The Racial Divide (by Cal Thomas)
43. Senators Press On Abortion
44. Panel Tries To Catch Thomas Shifting On Issues
45. Nominee Wins Fans Beyond Beltway
Wall Street Journal
46. Editorial -- Biden Meets Epstein
47. Democrats Accuse Thomas Of Changing Positions
To Win Confirmation As Justice
New York Times
48. Editorial -- Natural Law, Then And Now
49. Thomas Undergoes Tough Questioning On Past Remarks
50. (continued)
51. Sticking To The Script
52. Specter Dons Mantle Of Republican Maverick At Senate Hearing
53. Sizing Up The Tal Of 'Natural Law':
Many Ideologies Discover A Precept
Washington Post
54. Column -- The Modest Significance Of The Modern Court
(by George Will)
55. Thomas Refuses To State View On Abortion Issue
56.
(continued)
57. For Committee Democrats, Nominee's Lack of Views
Can Be A Target Too
58. Natural Law Places Focus On Flexibility
Wednesday, Sept. 11
Dallas Morning News
59. Thomas Tries To Ease Fears At Hearing
Chicago Sun-Times
60. Thomas Backs Privacy Rights, Mum On Abortion
Chicago Tribune
61. Column -- Grandpa Followed His Natural Law (by Mike Royko)
62. Thomas Supports A Right To Privacy
Hartford Courant
63. Thomas Sees Privacy Right Guaranteed
64.
(continued)
Miami Herald
65. Thomas Skirts Abortion Issue
66. Hearing A Tough Job Interview For Thomas
Detroit News
67. Editorial -- Joe Biden's Little Confession
68. Column -- In Senate Minefield, Nominee Sidesteps
Loaded Questions (by James P. Gannon)
69. Thomas Can Expect More Questions
St. Louis Post-Dispatch
70. Thomas Backs Privacy Rights
71. Thomas Scores Points In First Round of Confirmation Hearings
Boston Globe
72. Thomas Disavows Old Stance
73. (continued)
74. For Thomas, A Choice Between Popularity And Principle
75. In Privileged Setting, Panel Hears of Life Of Poverty
Newsday
76. Thomas Tones Down Themes Of His Speeches
Cleveland Plain Dealer
77. Court Nominee Avoids Issue Of Abortion
Baltimore Evening Sun
78. Mfune Has Doubts On Thomas
###
Frustrated Democrats Press Thomas on Position Changes
By JAMES ROWLEY
Associated Press Writer
WASHINGTON (AP) Frustrated Democrats accused Supreme Court
nominee Clarence Thomas Thursday of evading questions about his
retreat from past positions and unreasonably refusing to say how
he would approach future cases.
"That's the most inartful dodge I've ever heard,' Thomas was
told at one point by Sen. Joseph R. Biden, the Judiciary Committee
chairman, after the nominee said he "could not sit here and
decide" whether unmarried couples had a right to privacy.
Thomas eventually said sexual relations and childbearing by
unmarried couples were protected by a privacy right, but not before
Biden said: "It's getting more like a debate to get information."
Despite such complaints - and questions by several Democrats
whether Thomas had undergone a "confirmation conversion" and was
disavowing previous statements to win votes - there did not appear
to be a solid opposition to the nomination.
Thomas continued to turn aside questions about his views on
abortion, finally telling Sen. Herb Kohl, D-Wis., "Whether or not
I have a view is irrelevant."
On the subject of changing positions, Kohl asked Thomas, "why
is it inappropriate for us to make an evaluation of your career
based on all of what you have written and said?"
Kohl suggested that Thomas was telling the committee "Just view
me on what I am saying this week," and the senator asked if that
was the right way for the panel to make its confirmation decision.
Republicans on the committee came to his defense, as did
President Bush who said at the White House that Thomas was "doing
a beautiful job up there."
Bush, asked at a news conference about the credibility of
Thomas' claim not to have an opinion on the landmark 1973 court
decision legalizing abortion, said simply, "That's a question for
the Senate to decide.'
Sen. Orrin Hatch, R-Utah, complained that Thomas had been asked
about abortion 70 times, compared to the 36 questions about the
issue that were asked last year at David Souter's confirmation
hearing. Souter was confirmed despite his refusal to answer such
questions.
"I don't understand why you are being treated any differently
than these other confirmable people," Hatch said.
A federal appeals judge since last year, Thomas, 43, was
nominated this summer to replace resigning Justice Thurgood
Marshall. Both men are black, but Thomas has a strongly
conservative record opposed to Marshall's liberalism.
Biden, D-Del., expressed exasperation at Thomas' insistence
during three days of hearings that he espoused "natural law
principles" only as political theory, not as a political
philosophy.
"That strikes me as something different that what you said"
in many previous speeches, Biden told Thomas.
In a 1988 speech, Thomas, then chairman of the Equal Employment
Opportunity Commission, had said "the higher law background of the
American government, whether explicitly appealed to or not,
provides the only firm basis for a just, wise and constitutional
decision."
Biden reminded Thomas that during another speech that year, he
had praised Justice Antonin Scalia's "remarkable dissent" from
a Supreme Court decision as showing how "we might relate natural
rights to democratic self-government and thus protect a regime of
individual rights."
2
-2-
During the break, Danforth said Thomas had laid to rest fears
"that he had in mind an extra body of law
that he was going
to apply in unexpected and unpredictable ways."
Danforth said Thomas' understanding of constitutional law "is
a very centrist position, it is not ossified, it is not locked in
time or what the judge has pòpping out of his head."
Sen. Edward M. Kennedy, D-Mass , pressed Thomas to tell him what
standard he would use in deciding an abortion case, noting that
Thomas had already testified in support of a test used to decide
school prayer disputes, including one the high court will consider
this fall.
Thomas refused to give such an analysis "in this setting. If
Outside the U.S. Capitol, black civil rights and religious groups
staged a rally to urge the Senate to reject the nomination and
"send him back to Pin Point, Ga.," his hometown.
Black groups that oppose Thomas accused him of trying to obscure
his record by focusing attention on his poverty-stricken childhood
in the rural, segregated South.
AP-DS-09-12-91 1559EDT
Thomas Says It 'Irrelevant' Whether He Has Opinion on Abortion
By RICHARD CARELLI
Associated Press Writer
WASHINGTON (AP) Supreme Court nominee Clarence Thomas told the
Senate Judiciary Committee today it is "irrelevant" whether he
holds any personal opinion on abortion, spurring new frustration
among the committee's Democrats.
But as the hearings' third day got under way, no groundswell of
opposition to his confirmation seemed to be emerging.
Asked several times by Sen. Herb Kohl, D-Wis., about women's
right to end their pregnancies, Thomas said, "Whether or not I
have a view is irrelevant."
President Bush, asked at a news conference whether Thomas' claim
not to have an opinion on abortion is credible, answered, "That's
a question for the Senate to decide."
"He's handling himself very well," the president said. "I
think he's doing a beautiful job up there. I feel more confident
than ever that he will be confirmed."
Thomas' answers have frustrated the committee's Democrats, who
say he is an evasive witness. They also have voiced skepticism
about his backing away from stands he took in past writings and
speeches.
Committee Chairman Joseph Biden, D-Del., began to show signs of
exasperation today during spirited questioning about the nominee's
views on "natural law," a theory that certain rights exist
independent of written law.
At one point, Biden accused Thomas of using "tortuous logic."
Later, he referred to one of Thomas' replies as "the most unartful
dodge I've heard." After still another Thomas answer, Biden said,
"That's not the question I asked you, judge."
Republicans tried to deflect criticism over Thomas' refusal to
answer questions from the Democrats.
"It is, in my view, inappropriate to keep this up," said Sen.
Orrin Hatch, R-Utah. He said Thomas had been asked more than 70
questions about his abortion views even though Justice David H.
Souter was asked only 36 such questions during his confirmation
hearings last year.
"What are we going to have? Sixty-four thousand questions on
abortion before we're done with this approach? Hatched asked.
"Enough is enough.
Thomas said Senate confirmation of his nomination would give him
"an opportunity to serve and give back" and to "bring something
different to the court."
"I can walk in the shoes of the people who are affected by what
the court does," Thomas said.
Several senators were openly skeptical Wednesday over Thomas'
insistence that he has no opinion on the 1973 Supreme Court
decision legalizing abortion.
If that's so, said Sen. Paul Simon, D-Ill., "he's the only
person gathered in the room who does not have an opinion." Kohl
added, "I'm concerned about his candor, his willingness to be
forthcoming."
Today, Kohl asked the nominee, "Is it fair of you to say to us,
for the most part, just view me on what I'm saying here this week?"
Kohl asked the black federal judge whether he was offended by
published comments calling his appointment by President Bush a
"quota."
"That would trouble anyone," Thomas said, adding, "I don't
think it's accurate." He said Bush assured him he was picked
because he was the best qualified of those potential nominees
considered.
Thomas is expected to continue testifying through Friday. The
committee next week will hear from other witnesses.
Two pivotal members of the 14-member committee Howell Heflin,
D-Ala., and Arlen Specter, R-Pa. also voiced concern about
Thomas' answers. But the panel's traditional third swing vote,
Dennis DeConcini, D-Ariz., said Thomas was doing well.
Heflin cited the "appearance of a confirmation conversion" and
said it may raise questions of Thomas' "integrity and
temperament."
-more-
-2-
4
But Heflin added, "I am not at this time of any firm opinion
one way or the other" on whether Thomas should be confirmed.
And Simon said Thomas' performance thus far "has neither helped
him nor hurt him."
Specter blamed fellow committee members more than Thomas in
concluding, "We really haven't moved very far in the process."
Thomas' opponents believe Republicans Strom Thurmond of South
Carolina, Orrin Hatch of Utah, Charles Grassley of Iowa, Alan
Simpson of Wyoming and Hank Brown of Colorado are solid Thomas
backers.
But they hope Sens. Edward M. Kennedy, D-Mass., and Howard
Metzenbaum, D-Ohio, will be joined by the three swing-vote senators
and Biden, Leahy, Simon and Kohl in voting against the nominee.
Biden and Kennedy declined comment Wednesday on their leanings.
Metzenbaum said Thomas' refusal to give direct answers "makes
it more difficult to vote for him."
AP-DS-09-12-91 1449EDT
Taking Sides: Trying to Get the Best Spin
By JAMES H. RUBIN
Associated Press Writer
WASHINGTON (AP) "Is there a line here?" asked Sen. John
Danforth as he approached a bank of microphones and television
cameras outside the room where Supreme Court nominee Clarence
Thomas is undergoing Senate confirmation hearings.
Assured by a clutch of reporters that senators outrank interest
groups when it comes to placing their spin on the day's events, the
Missouri Republican introduced two Thomas backers and stepped aside
to let them give their testimonials.
The public relations battle spilled onto the lawn near the U.S.
Capitol on Thursday, as civil rights groups staged a mini-rally
urging the Senate to reject the nomination and "send him back to
Pin Point, Ga., Thomas' hometown.
Not to be outdone, Thomas backers wearing T-shirts proclaiming
their support distributed buttons that said: "Tell Our Children.
Dreams Can Come True. Support Clarence Thomas. "
The events are typical of a process that increasingly is taking
on the trappings of a full-fledged political campaign.
While inside an ornate Capitol Hill hearing room Thomas is
pressed for his views on the law, there is a flurry of activity in
jammed corridor outside to influence the public, the news media and
ultimately the senators who will decide the nominee's fate.
"We
have a civic and moral responsibility to get the message out,"
said Ralph Neas, head of the Leadership Conference on Civil Rights.
"This is an appropriate way to celebrate the bicentennial of the
Bill of Rights."
Neas' organization, a coalition of liberal groups opposed to
Thomas, is being matched news conference for news conference by
supporters of the conservative black judge.
Among the most prominent backers is Danforth, Thomas' boss when
the nominee was an assistant attorney general in Missouri and later
a member of the senator's staff. The moderate Republican senator,
well liked and respected by his colleagues, is taking a leading
role in shepherding Thomas' appointment through the Senate. The
rough-and-tumble politics surrounding the Thomas
confirmation fight is an updated, institutionalized version of a
process that began to flower when Robert H. Bork lost his battle
to be confirmed to the high court in 1987.
Republicans and conservatives have accused liberal interest
groups of ruining Bork's chances to become a justice by distorting
his record.
This week, they say, they're not taking any chances that the
public's view of the proceedings will be one-sided.
"We've got to participate," said Thomas Jipping of the
conservative Coalitions for America. "This is an opportunity for
the nominee to speak for himself. We've got to let the American
public know he's telling the truth."
Jipping was a guest Wednesday on a pre-dawn radio talk show in
Denver and is taking other steps to line up support for Thomas.
"We're trying to get 75,000 phones calls to senators in the next
two weeks" to demonstrate backing for Thomas, he said. Liberal
groups are taking similar steps keeping their
followers updated on the latest developments, distributing flurries
of news releases to reporters and sponsoring newspaper
advertisements.
"Americans clearly have a right to know what Clarence Thomas
stands for," says a full-page ad paid for by Planned Parenthood,
a group opposing the nominee. "We must get the answers before
we discover that Mr. Thomas is one more vote against a woman's
right to decide about abortion.
"Call your senators and tell them to demand answers," the ad
urges. "Do it today."
Outside the hearing room, the so-called "spin doctors" who
buttonhole reporters to analyze the day's proceedings are focusing
on Thomas' strategy of backing away from controversial statements
he made in the past.
Liberal groups called it a confirmation conversion, an expedient
repudiation by Thomas of his record aimed at assuring him a seat
on the high court. Conservatives said it demonstrates his
impartiality and open-mindedness.
-more-
-2-
Thomas' "attempts to repackage his views (are) insulting to the
intelligence of the senators and the women of this country," said
Patricia Ireland of the National Organization for Women.
"Judge Thomas today treated women as second-class citizens"
by refusing to discuss abortion rights, said Judith Lichtman of the
Women's Legal Defense Fund.
Conservative groups said Thomas' opponents were desperate
because they lacked grounds on which to attack the nominee
successfully.
"All the other side has is the possibility of a misstep" by
Thomas, said Jipping.
"You've got 'em," Sen. Alan Simpson, R-Wyo., told Thomas.
"They're very frustrated by you."
AP-DS-09-12-91 1447EDT
7
WALTER MEARS: Nominee Says Past Views Won't Guide Future Judgments
An AP News Analysis
By WALTER R. MEARS
AP Special Correspondent
WASHINGTON (AP) This judge had been as talkative as the last
one was taciturn. But Clarence Thomas said not to worry about his
138 speeches, telling skeptical senators those views won't guide
his judgments on the Supreme Court anyhow.
It's a variation on the blank-slate confirmation of Justice
David H. Souter in 1990. Thomas came to his nomination with a full
slate of speeches and writings, but testified that he's erased
them, setting aside ideological and personal preferences in order
to be a fair and impartial federal judge.
So far, the strategy seems to be holding. There is no sign that
liberal opponents are going to be able to rally more than token
opposition to Senate approval of Thomas, 43, a black conservative.
"You've got 'em," applauded Sen. Alan Simpson, R-Wyo.
"They're very frustrated by you."
Thomas called his old speeches the musings of "a part-time
political theorist" in the policymaking job he used to hold, not
of the judge he is now.
Souter's critics couldn't find a paper trail because he had said
and written so little on national issues before his Supreme Court
nomination.
There's no such shortage with Thomas. The speeches are among
36,000 pages of documents 10 cartons full supplied to the
Senate Judiciary Committee for his confirmation hearings.
But Thomas said repeatedly that they no longer count.
He said ideological mindsets are part of the baggage a fair,
impartial judge cannot carry. "You start putting the speeches
away," he said. "You start putting the policy statements away.
You want to be stripped down like a runner. So I have no
agenda."
Like Souter, confirmed a year ago, Thomas is a relatively junior
judge on the U.S. Court of Appeals. But in contrast to Souter's
silence, Thomas had spent nearly a decade in administration posts,
speaking, writing and ruling in equal employment cases.
"My wife said to me that to the extent Justice Souter was a
stealth nominee, I am Bigfoot," Thomas said.
But he's no less elusive as a target of Democrats who suspect
that once on the court, he will cement conservative dominance that
will outlast any of them. Again and again, he told critical
questioners that his earlier pronouncements were in circumstances
and for purposes different from those required of a judge.
Some he simply disavowed.
That's one route out of the quandary Robert H. Bork described
after the Senate rejected his Supreme Court nomination in 1987,
following combative hearings on his extensive writings on the law.
"A president who wants to avoid a battle like mine, and most
presidents would prefer to, is likely to nominate men and women who
have not written much, and certainly nothing that could be regarded
as controversial by left-leaning senators and groups," Bork said
in his book, "The Tempting of America."
That was Souter. That is not Thomas.
But Bork, in his confirmation hearings, debated and defended
some of his controversial, conservative positions. Thomas muted
his.
"Your complete repudiation of your past record makes our job
very difficult," complained Sen. Howard Metzenbaum, D-Ohio. The
job for Thomas and the administration team lobbying for him is to
win confirmation, and the lament of a Democratic critic points to
their headway.
Like Souter, Thomas wouldn't say whether he believes in a
constitutional right to abortion, saying that would prejudge a
question the court will be facing.
Unlike Souter, Thomas had taken public positions that appeared
to mark him an opponent of abortion rights. But he said he didn't
mean it.
For example, he said his praise in 1987 for an essay on the
right to life was "a throwaway line" in a speech seeking
conservative support for civil rights. He said he signed a 1986
White House working paper without reading anti-abortion statements
that would have concerned him because his only interest at the time
was in dealing with problems of low-income families.
-more-
8
-2-
There is a double message. Civil rights and the problems of poor
families are not abstract issues to a black man raised in poverty
in the segregated South. The bootstrap success story that puts him
at the threshold of the Supreme Court is one his sponsors want told
and retold.
Thomas recounted it as he went before the committee, said he
would carry to the court basic values of people who coped with
segregation and "believed so very deeply in this country in spite
of all the contradictions."
In all his thousands of words as a witness, none were more
compelling than when he adopted the Deep South drawl of Pin Point,
Ga.:
"I can still hear my grandfather: 'Y'all goin' to have mo' of
a chance than me. And he was right."
That's difficult to counter, to the frustration of Thomas
opponents.
"If he's on that Supreme Court, he will confirm in my judgment
what the white conservatives already are saying," Benjamin Hooks,
executive director of the NAACP, said in a CNN television
interview. "And they will then be able to say that it's all right
because Clarence the black man says it's all right."
Opponents of the Thomas nomination will testify later.
Unless there's a surprise setback in the balance of Thomas' own
testimony, they'll probably be too late, with too little, to change
the outcome.
EDITOR'S NOTE Walter R. Mears, vice president and columnist
for The Associated Press, has reported on Washington and national
politics for more than 25 years.
AP-DS-09-12-91 0141EDT
9
Thomas: 'Pained' by Back-Alley Abortion; Open Mind as Justice By
JAMES ROWLEY
Associated Press Writer
WASHINGTON (AP) Supreme Court nominee Clarence Thomas said
Wednesday he was "very, very pained" by the thought of back-alley
abortions and insisted he would have an open mind as a justice
about keeping medically safe abortion legal.
However, he declined under persistent questioning to say whether
he believed the Constitution protected a woman's right to end her
pregnancy.
On the second day of his Senate Judiciary Committee confirmation
hearings, Thomas was immediately confronted on the issue by Sen.
Howard Metzenbaum, D-Ohio.
Over and over, Metzenbaum pressed for his view. Over and over,
Thomas refused to say how he would vote on challenges to the 1973
Supreme Court decision legalizing abortion.
To answer that question "would undermine my ability to sit in
an impartial way on such an important case, he said.
"I have no reason or agenda to prejudge the issue or
a
predilection to rule one way or another on the issue of abortion,"
he added.
Thomas did offer fuller comment when asked about another hot
issue before the high court prayer in public schools.
When Sen. Paul Simon, D-Ill., discussed the feelings decades ago
of a Jewish elementary school boy who left the room each day while
his classmates recited a prayer, Thomas said, "Any policy of
exclusion should be considered inappropriate."
Thomas, who if confirmed to replace Thurgood Marshall would
become only the second black justice in history, was also asked why
he had criticized Supreme Court decisions upholding affirmative
action programs to remedy discrimination.
Sen. Arlen Specter, R-Pa., expressed concern about whether
Thomas would respect the intent of Congress while interpreting
civil rights laws that have long been regarded as requiring
affirmative action hiring.
Thomas said he would follow the intentions of lawmakers and
added that his criticisms of Congress and of Supreme Court
decisions were made when he chaired the Equal Employment
Opportunity Commission.
"I advocated as an advocate, and now I will rule as a judge,"
Thomas said.
But it was Thomas's views on individual privacy and abortion
that most interested his Democratic questioners.
Thomas recalled that during the era when abortions were barred
by law "you heard the hushed whispers about illegal abortions and
the individuals who performed them in a less-than-safe
environment.'
"If a women is subjected to an environment like that, on a
personal level, certainly, I am very, very pained by that,' Thomas
said. "I think any of us would be. I wouldn't want to see people
subjected to torture of that nature."
Sen. Patrick Leahy, D-Vt., expressed surprise at Thomas'
insistence that he had no opinion on the landmark 1973 abortion
decision even though he had cited the case in several speeches and
articles.
"I can't believe that all of this was done in a vacuum, in the
absence of any clear consideration of Roe VS. Wade," Leahy told
Thomas.
Outside the hearing room, Leahy said, "I'm not satisfied with
the answers," adding that he intended to ask follow-up questions.
Sen. Herb Kohl, D-Wis., said he was frustrated by a dearth of
direct answers from Thomas. "I'm concerned about his candor, his
willingness to be forthcoming."
Metzenbaum, who opposed Thomas when the Senate confirmed him as
a federal judge last year, told reporters that Thomas' refusal to
answer the abortion question "makes it more difficult to vote for
him."
But Sen. Dennis DeConcini, D-Ariz., said he thought Thomas
"handled the privacy questions very well" without taking a stand
on abortion. "I don't see how you could ask him to do anything
more."
Thomas was also pressed on whether he had undergone what
Metzenbaum called a "confirmation conversion" when on the first
day of his hearings he disavowed his earlier advocacy of úsing
natural, or higher, law principles to interpret the Constitution.
-more-
-2-
Opponents say such a "natural law" theory could be invoked to
outlaw abortion.
"We don't know if the Judge Thomas who has been speaking and
writing throughout his adult life is the same man who is up before
us for confirmation," Metzenbaum said. "Frankly it gives me a
concern."
Thomas said that his writings about natural law were part of an
attempt to "ask the basic question of how do you get rid of
slavery" I and rally conservatives to a more aggressive civil
rights stance.
"The issue of civil rights is something that has affected my
entire life," said Thomas, referring as he had on Tuesday to his
upbringing in a poor black family in the segregated South.
"I was looking at natural law not as an effort to undermine or
destroy individual freedoms on our society," he told Sen. Alan
Simpson, R-Wyo.
Since moving from the EEOC to the federal bench, Thomas said he
has "put away the speeches, put away the policy positions" and
no longer talks about natural law or any other public issue.
"I have no agenda," Thomas said. "I don't have an ideology
to take to the court to do all sorts of things."
On civil rights, Thomas said, "we all have to do as much as
possible to include members of my race in society. At the same
time, you don't want to discriminate against others."
Simpson disputed the notion that Thomas had undergone a change
of thinking just in time for the confirmation hearing, saying such
a charge by liberal groups was "an act of desperation"
"You've got 'em, they're very frustrated by you," Simpson told
the nominee.
Simpson said the repeated questions about natural law were an
attempt to "elevate this rather peripheral issue to a central
issue in confirmation."
"It has been selected as an issue to confound people," Simpson
said.
President Bush, meanwhile, praised Thomas's performance. "He's
doing a superb job, he knows exactly how to handle himself and
that's what's coming through," the president said.
AP-DS-09-11-91 1810EDT
THOMAS FACES TOUGHEST QUESTIONING YET IN SENATE HEARINGS
By Jacqueline Frank
WASHINGTON, Reuter - Supreme Court nominee Clarence Thomas
Thursday faced the toughest questioning of his confirmation
hearings when Senate Judiciary Committee chairman Joseph Biden
pressed him repeatedly on his views of the Constitution.
Biden, a Delaware Democrat, accused Thomas of "tortuous"
reasoning and complained he was dodging questions.
Other Democratic senators questioned whether he had changed
his mind on a number of issues just to please the committee, a so-
called "confirmation conversion."
At least one Democrat, Howell Heflin of Alabama, said Thomas
seemed to be moving in the right direction.
"He's moved toward the center at least," Heflin told
Public Television in a broadcast of the hearing. He said Thomas
had said he supported the right to privacy, the minimum wage law
and intended to hold the Constitution as the highest law -- all of
which are not conservative views.
"Many of the extreme right win may be worried about him now.
He may be a closet liberal," Heflin said.
Thomas, a black federal judge who has served in Republican
administrations, is opposed by many liberals and black
organizations who fear his views would give conservatives on the
high court more power to roll back liberal rulings.
In July President Bush nominated Thomas, 43, to succeed one of
the court's leading liberals, Justice Thurgood Marshall, who is
retiring this year. Marshall, 83, is the only black to have served
on the high court.
Bush Thursday praised Thomas' performance at the hearings,
saying: "I think he is handling himself very, very well." Through
three days of intense questioning Thomas has kept his temper and
has maintained a calm, monotone voice.
He said Thomas was correctly following the lead of past
nominees who have refused to stake out positions in advance on
sensitive issues that might reach the court.
The Supreme Court rules on whether U.S. laws are valid under
the standards of the Constitution on issues ranging from
abortion to flag-burning and the rights of accused criminals.
For the third day, Thomas refused to answer questions on whether
he believes a woman's right to abort a pregnancy is guaranteed
under the Constitution, saying that to state an
opinion would prevent him from being impartial if the issue comes
before the court.
"I understand the concerns on both sides of the issue. Whether
or not I have (a personal opinion) I think is
irrelevant," he said.
Sen. Orrin Hatch, R-Utah, said in his defense that it was
unfair to ask him more than 70 times in three days his views on
the abortion issue. "I think there is a time when enough is
enough," he said.
He pointed out that Justice David Souter was approved by the
committee last year on a 13-1 vote without answering the
abortion question. "I think the burden is on those asking
questions to tell the American people why you are being treated
any differently than Judge Souter," he said.
But Thomas did say he supported the Supreme Court decision
upholding a ban on prayer in schools, a decision conservatives have
also sought to overturn.
The longest and most contentious exchange was with Biden, who
said he was dissatisfied with Thomas' answer on the arcane issue
of "natural law."
"I don't know why you are so afraid to deal with the
natural law thing," Biden said. He threatened that the fourth day
of hearings might be devoted entirely to this topic.
Natural law theorists hold that people by virtue of their
existence have natural rights that should take precedence over any
constitutional rights or laws written by governments.
Liberals are concerned that Thomas might apply natural law to
limit the role of government in regulation of business or use it
to justify cast the deciding vote to overturn the 1973 Roe versus
Wade decision that legalized abortion.
-more-
12
-2-
Biden said Thomas appeared to be giving the panel a
different impression of his view of natural law than he had
expressed in speeches and writings during his 10 years in
Republican administrations.
"I want to come away with a better understanding of the method
you would use to interpret the very difficult phrases of the
constitution" such as liberty and equality, Biden said. Thomas
replied that the concepts of liberty, equality and other rights
guaranteed in the Constitution were grounded in natural rights as
viewed by the framers but were not limited to what those writers
of the document intended 200 years ago.
"It's not frozen in time. Our notion of what liberty means
evolves with the country, it moves with our history and our
traditions," Thomas said.
He said he agreed with past court decisions that guaranteed
the right of reproductive privacy to married persons, but he
tangled with Biden when he declined to say
whether he thought single persons had this right.
"The courts have never said. I cannot sit here and decide
that,' Thomas said.
"That is the most unartful dodge I have heard," Biden
replied.
None of the eight Democrats and six Republicans on the
committee has stated how he will vote. The hearings will
continue next week with testimony from groups pro and con.
REUTER
Reut16:46 09-12
13
NPR's NINA TOTENBERG and PBS's PAUL DUKE discuss the morning
session of Thursday, September 12:
DUKE:
We again had this morning quite a bit of exchange between
some of the Democratic senators trying to pin down Judge Thomas on
the abortion issue and other areas of disagreement. We had a few
intellectual minuets between the Democrats and Judge Thomas this
morning. And at the very end we saw Sen. Kennedy bore in with some
tough questioning, trying once more to pin down Judge Thomas on the
issue of where he stands on Roe V. Wade. And the final question
that was put to him by Sen. Kennedy was, would he specifically vote
to overturn or to uphold Roe V. Wade, and to nobody's surprise, I'm
sure, especially not to Sen. Kennedy's surprise, the Judge decided
to sidestep the issue again and to explain, as he has in the past,
that he has no agenda and that he wants to go on the Supreme Court
as an impartial arbiter.
TOTENBERG: We saw an interesting little byplay there. Just before
Sen. Kennedy concluded his questioning, Ken Duberstein, who is the
lobbyist and coach for this event brought in by the White House to
help shepherd the Thomas nomination through, held up two fingers,
noting that there were two minutes left in the time period for the
Kennedy questioning.
And that of course followed his rather contentious session of
questioning this morning with Sen. Biden very aggressively
questioning the nominee about natural law and about whether the
right of privacy extends to single people's desires for
privacy
and procreation rights. And it got very hot and heavy with the
nominee seeming to evade the answers to the Senator's questions
quite a bit.
And Sen. Biden clearly went over his time by nine or 10
minutes. Sen. Danforth, the nominee's chief sponsor, got quite
exercised. The members of the committee, Sen. Simpson, Sen.
Thurmond on the Republican side, butted in to try to save their guy
and Biden said, well, if you think your fella's in trouble, okay,
I'll quit. And then afterwards everybody obviously is pretty upset
and we could see Sen. Biden going over and trying to make peace
with Sen. Danforth. I think all is peaceful in the world.
But if you look back at that exchange between Sen. Biden and
Judge Thomas, you see that Sen. Biden was using some pretty tough
language. He accused the nominee of using "tortuous logic," of
"the most artful dodge I've ever heard.' He said at one point,
"Your answer doesn't jibe." This sounds to me like a Senator who
is seriously contemplating voting no on this nomination based on
the answers he's getting.
DUKE: Well, from what we know now there are maybe four or five
members on the Democratic side who could wind up voting against
confirmation of Judge Thomas, even though the hearings still have
another week to go after this week.
From the standpoint of Judge Thomas, though, he is sticking
religiously to his position. He's not deviating very much from the
explanations that he's offered on natural law, and certainly he's
not going any further in clarifying his position on abortion.
There has been an assumption on the part of members of some of the
women's organizations that he would be a vote to overturn Roe V.
Wade. But Judge Thomas is just not going to enlighten us any
further on that.
###
NETWORK NEWS
(Wednesday evening, Sept. 11)
THOMAS NOMINATION
ABC's Peter Jennings: This is the second day of confirmation
hearings for Judge Clarence Thomas to the Supreme Court. It's been
another day of Democratic senators trying and failing to pin him
down as to what he feels about the question of abortion. One of
the only things Judge Thomas would be specific about today was his
favorite football team.
ABC's Tim O'Brien: It was to be a tough morning for the Supreme
Court nominee, with the committee's most liberal member continuing
to press him for an answer on abortion rights.
(Sen. Metzenbaum: "I want to ask you once again, appealing to your
sense of compassion, to whether or not you believe the Constitution
protects a woman's right to abortion?"
Thomas: "I think that to take a position would undermine my
ability to be impartial."
Metzenbaum: "I'm just asking you whether you believe that the
Constitution protects a woman's right to choose to terminate a
pregnancy."
Thomas: "I believe the Constitution protects the right to privacy,
and I have no reason or agenda to prejudge the issue.")
Sen. Metzenbaum accused Thomas of changing his positions to win
Senate approval. In the past, Thomas had suggested that under a
theory called natural law, a natural right to life might prohibit
abortion. But yesterday, Thomas testified that court rulings
should not be based on natural law. Metzenbaum called that a
confirmation conversion.
(Metzenbaum: "We don't know if the Judge Thomas who has been
speaking and writing throughout his adult life is the same man up
for confirmation before us today."
Thomas: "I understand your concern that people come here and they
might tell you A and then do B. But I have no agenda.")
Thomas succeeded in being extraordinarily non-committal. His
bravest concession may have been a light-hearted one. When it
comes to pro football, he prefers the Dallas Cowboys to. the
Washington Redskins.
(Sen. Simpson: "To have you in this nest of Redskin fans to be a
Dallas Cowboy fan certainly discloses a degree of independence
which will serve you very well on the court.")
Rooting for Dallas in Washington may be as brave as Thomas needs
to get. The committee has never rejected a nominee solely because
of his failure to disclose how he would vote on abortion or any
other single issue. Thomas and his backers are betting it won't
start here.
(ABC-4)
NBC's Tom Brokaw: In the Capitol, in a Senate hearing room, the
subject was the power of the U.S. Supreme Court. Nominee Clarence
Thomas was answering questions about women's rights, including the
right to abortion.
inomas suggested
may need more legal protection against discrimination, but said he
15
has no opinion on whether they have a right to an abortion. Thomas
appeared more at ease when he arrived and seemed to gain confidence
throughout the day, even when pressed hard about abortion. Sen.
Metzenbaum asked him the same question 12 times.
(Metzenbaum: "I'm not asking you to prejudge the case. I'm just
asking you whether you believe that the Constitution protects a
woman's rights to choose to terminate a pregnancy."
Thomas: "I think that to take a position would undermine my
ability to be impartial.")
Metzenbaum said if the courts forbid legal abortions, women would
again be forced into back alleys.
(Thomas: "On a personal level, certainly I am very, very pained
by that. I think any of us would be. I wouldn't want to see
people subjected to torture of that nature.")
Other senators tried to pin him down. Had he ever discussed Roe
V. Wade? He mentioned it twice in articles. Doesn't he have an
opinion on it?
(Thomas: "Do I have this day an opinion, a personal opinion, on
the outcome in Roe V. Wade? And my answer to you is that I do
not."
Sen. Leahy: "With all due respect, Judge, I have some difficulty
with your answer.")
Women's groups opposing Thomas stood vigil in the hallway.
(Kate Michelman, National Abortion Rights Action League: "He has
stonewalled every question, refusing to answer on the question of
whether there is a constitutional right to choose.")
Thomas was also challenged by Sen. Specter, a Republican, for his
past opposition to court-ordered affirmative action. Today, he
said the courts might need to give women more protection against
discrimination. Sen. Heflin accused him of moderating his views
to get confirmed.
(Sen. Heflin: "It has entered into my mind an appearance of
confirmation conversion.")
Thomas said he has been consistent. His refusal to discuss
abortion rights follows the practice of previous nominees. The
senators can be annoyed, but there's not much they can do about
it.
(NBC-2)
CBS's Dan Rather: Second day of Senate confirmation hearings for
Supreme Court nominee Clarence Thomas. No letup in questions about
his abortion views and no letup in his refusal to say where he
stands.
CBS's Rita Braver: Clarence Thomas came to his first full day of
questioning prepared for battle. He was immediately launched into
a war of wills with Sen. Metzenbaum. Again and again, Metzenbaum
tried to get him to say whether the Constitution guarantees a woman
the right to abortion. Again and again, Thomas refused to answer.
(Metzenbaum: "You certainly can express an opinion as to whether
or not you believe that a woman has a right to choose to terminate
her pregnancy, without indicating how you would expect to vote in
any particular case, and I'm asking you to do that."
Thomas: "Senator, I think that to do that would seriously
compromise my ability to sit on a case of that importance and
involving that important issue.")
Thomas also insisted he has no opinion on whether the Supreme
Court's decision was correct in Roe V. Wade. But he was willing
to discuss another controversial subject -- civil rights -- and his
opposition to the idea of making up for past discrimination through
affirmative-action programs that grant special preferences to
minorities.
(Specter: "Why is it that you come down so strongly against any
group action to try to put minorities or African-Americans in the
position that they would have been in as a group but for the
discrimination?")
Thomas replied he wants to eliminate any form of racism or
discrimination against minorities, but --
(Thomas: "I think that you have a tension. You want to do that,
but at the same time, you don't want to discriminate against
others. The line that I drew was a line that said that we
shouldn't have preferences or goals or timetables or quotas.")
Some senators complained that Thomas has undergone a last-minute
confirmation conversion. For example, refusing to accept previous
statements that he made on how the law should be interpreted.
Thomas maintains he's been consistent all along, and he is expected
still to be confirmed easily.
(CBS-7)
16
Chicago Tribune
September 12, 1991
3
Senators question
Thomas' consistency
By Linda P. Campbell
pained" by the notion of women having
Chicago Tribune
to undergo the "agony" of unsafe, ille-
WASHINGTON-Judge Clarence
gal abortions.
Thomas frustrated Democrats' efforts to
"I wouldn't want to see people subjec-
pin down his views on abortion rights
ted to torture of that nature," Thomas
Wednesday, but President Bush's Su-
said.
preme Court nominee said he was trou-
But he insisted that commenting on
bled by the "torture" women would suf-
abortion would "undermine my ability
fer from illegal abortions.
to sit in an impartial way" on a Su-
During his second day of testimony
preme Court case on the issue.
before the Senate Judiciary Committee,
Sen. Paul Simon (D-III.) said after the
Thomas also endorsed the Supreme
hearing: "My guess is that the answers
Court's approach to sex discrimination
that we have heard so far are about the
cases, saying he might in some cases
answers that we're going to get.
I
even consider a stricter standard for
would be surprised if we get much
workplace gender bias.
more."
Several Democrats on the committee
Thomas did comment more broadly
told Thomas they were concerned that
on another controversial area, school
he appeared on Tuesday to be backing
prayer. When Simon related the anec-
away from statements he made in
dote of a Jewish congressman having to
speeches and writings while chairing the
leave the classroom as a schoolboy
Equal Employment Opportunity Com-
when his classmates said their daily
mission during the 1980s.
prayer, Thomas said, "Any policy that
"Your complete repudiation of your
endorses exclusion should be considered
past record makes our job very diffi-
inappropriate."
cult," said Sen. Howard Metzenbaum
Thomas appeared less tentative
(D-Ohio), who last year voted against
Wednesday than when the hearings
confirming Thomas to the U.S. Circuit
opened. He repeatedly* tried to convince
Court of Appeals in Washington.
committee members that he would be a
"We don't know if the Judge Thomas
fair and open-minded justice.
who has been speaking and writing
A serious weight lifter and a Dallas
throughout his adult life is the same
Cowboys football fan, he resorted to
man up for confirmation today."
sports analogies several times for elu-
Thomas said repeatedly that he be-
cidation.
lieved his positions were consistent with
When policymakers become judges,
past statements.
he said, they must "start putting the
He acknowledged, however, that his
speeches away. You start putting the
prolific pen was causing him some diffi-
policy statements away. You begin to
culties.
decline forming opinions in important
"My wife said to me that to the ex-
areas that could come before your court
tent that Justice Souter was a Stealth
because you want to be stripped down
nominee, I am Bigfoot," he said, refer-
like a runner."
ring to the sparse written record Justice
He said a friend once told him "that I
David Souter brought to confirmation
was worthless as a conversationalist
hearings in 1990.
now" because he would express no
Sen. Arlen Specter (R-Pa.) asked
views on issues he had discussed while a
Thomas about his views on affirmative
Reagan administration official.
action hiring under civil rights laws.
Thomas tempered his earlier praise
Thomas has frequently expressed oppo-
for an article by conservative economist
sition to some affirmative action pro-
Thomas Sowell that said inequities in
grams.
pay and promotion for women stem
Thomas said Wednesday that as a jus-
from their own career choices.
tice he would respect the intent of Con-
Thomas said that he had referred to
gress on affirmative action cases. He
Sowell to argue that discrimination may
said his criticisms of Congress and of
not be the only cause for statistical dis-
Supreme Court decisions were made
parities between men and women in the
when he headed the EEOC.
workplace, and a closer look at the
"I advocated as an advocate, and now
numbers is needed.
I will rule as a judge," Thomas said.
"To say that women brought discrimi-
Thomas rebuffed persistent efforts to
nation on themselves or lower pay on
elicit his views on the constitutionality
themselves is going too far," he said.
of a woman's right to terminate a preg-
He also distinguished himself from
nancy. He went so far as to say he has
Justice Antonin Scalia, the court's most
never debated whether Roe VS. Wade,
outspoken conservative, in at least one
the 1973 Supreme Court ruling declar-
area-the means for interpreting laws
ing a fundamental right to abortion, was
written by Congress. Scalia, a former
correctly decided, even though one of
Justice Department lawyer and law pro-
his first-year law professors was Thomas
fessor, frowns on reading congressional
Emerson, who argued the privacy case
reports and debate transcripts to deter-
on which Roe was based.
mine what lawmakers intended when
"I have not made, senator, a decision
they wrote a statute that turns out to be
one way or the other with respect to
unclear.
that important decision," Thomas told
But Thomas said, "I don't know how
Sen. Patrick Leahy (D-Vt.).
one can go about
the process of
Thomas earlier had said that, "on a
interpreting ambiguous statutes without
personal level, certainly, I am very, very
looking to legislative history."
17
LOS ANGELES TIMES
SEPTEMBER 12, 1991
B5
A great many of the Warren Court's
COLUMN LEFT/
opinions expanding individual rights under
TIMOTHY S. BISHOP
due process and equal protection could just
as easily have been decided under the
privileges or immunities clause. A woman's
A Thomas Idea
decision on whether to abort a fetus could
as readily be called a privilege of citizen-
ship as a right of privacy, and Thomas
Could Energize
himself has written that Brown vs. Board
of Education, the great school desegrega-
tion case, should have been based on the
Liberal Engine
clause.
Moreover, the development of the privi-
leges or immunities clause would be hard
His expansive view of one
clause in the Bill of Rights may
It is the clause's 'malleability
work against conservatives.
that attracted Thomas.'
L
iberals prepared to take the long view
of the Supreme Court's development of
to contain. Those who drafted it never
constitutional protection for individual
provided a list of privileges or immunities
rights can find one bright side to the
nor a means whereby they might be
nomination of Clarence Thomas. To be
identified. A more inviting tool for a liberal
sure, if Judge Thomas is confirmed, his
jurist looking for a source of new individual
rulings will predictably continue the
rights is difficult to imagine.
court's conservative trend. But that would
Indeed, it is precisely this malleability-
be true of anyone on the Administration's
the clause's ability to take on the meanings
short list of candidates. What makes
that an interpreter wants to ascribe to
Thomas different is that he will try to take
it-that has attracted Thomas.
the court's interpretation of the Bill of
He has an old-fashioned belief in "natu-
Rights in a new direction, one that in the
ral law." Thomas has written, and his
long run may hold more promise for
testimony before the Senate committee
liberals than for conservatives.
confirms, that he believes that there is a
For more than 30 years, the modus
set of moral rights and principles that
operandi of liberal jurists has been to give
existed before the Constitution and forms
its "higher-law background." Thomas in-
expansive interpretations to two vague,
open-ended clauses of the 14th Amend-
sists that these natural rights were "given
ment that guarantee "due process" and
to man by his Creator, and did not simply
"equal protection of the laws." The lan-
come from a piece of paper." Looking for a
guage of these clauses is so broad that they
place to locate these God-given natural
rights in the Constitution so that he can use
invite use by judges seeking new ways to
justify expanding individual rights. Judges
them to adjudicate constitutional cases,
appointed by Presidents Reagan and Bush
Thomas found a receptive spot, the privi-
have shut down this method of expanding
leges or immunities clause.
the scope of individual rights, largely by
Liberals, of course, cannot ignore the
tying the clauses to the meanings they
damage that a Justice Thomas would likely
supposedly had when drafted in 1866.
do to their vision of a Constitution that
Having finally curtailed new develop-
protects a broad range of individual rights,
ments under these clauses, the last thing
like abortion and equality through affirma-
traditional conservatives want to see is a
tive action. Thomas' claim of a divine
push to open up another equally vague
source for individual rights must be pro-
provision of the Constitution that could be
foundly troubling to anyone who believes
used by those who think it must change
in the separation of church and state.
with the times.
Moreover, Thomas' writings show that
That just such a move is required is a
he has a very narrow conception of what
central tenet of Thomas' jurisprudence. He
rights we have, and that they consist
has made plain in his writings that he
almost entirely of negative rights to be let
believes a little-noticed clause of the Bill of
alone rather than positive rights to gov-
Rights that prohibits states from violating
ernment assistance.
the "privileges or immunities" of American
This will distress those who believe that
citizens is the centerpiece of the Constitu-
the Warren Court's expansion of rights
tion's protection of individual rights. To
made the United States a better society.
say that this view is unfashionable is an
Nevertheless, if a Justice Thomas could
understatement: The potential importance
persuade the court to reinvigorate the
of a re-energized privileges or immunities
privileges or immunities clause, it could
clause should not be underestimated.
eventually, in liberal hands, prove a pow-
erful engine for the development of new
individual rights.
After all, J. Harvie Wilkinson, a Reagan
appointee to the federal bench, wrote that
the clause "holds special hazards" for
conservatives and encouraged his fellow
judges to leave it dormant, rather than
"engaging in a disruptive roll of the dice."
18
Chicago Sun-Times
SEPTEMBER 12, 1991
49
The long and short of Thomas hearing
hatever else you may think about Clarence
delivered on the occasion of Martin Luther King's
W
Thomas and whether he belongs on the U.S.
birthday, a national holiday and whether it should be
Supreme Court, you sure have to admire his
one, to a conservative audience, making the point
attention span.
that he should be looked to with more reverence or
I have been following dutifully the Senate Judicia-
whether or not it was your speech to the Pacific
ry Committee hearings on the Thomas nomination
Institute or whether or not it is the Harvard Journal,
and if there's ever been anyone who can ask a longer
whatever it is, you repeatedly invoke the phrase
question than Sen. Joseph R. Biden (D-Del.), I hope
'natural rights' or natural law. And, as I said at the
I never run into him.
outset, here is good natural law, if you will, and bad
Chairman Biden's first question to Thomas ran to
natural law in terms of informing the Constitution.
312 words in the transcript. Whew! How are they
and there is a whole new school of thought in
going to turn that into a TV sound bite, I
America that would like very much to use
wondered.
natural law to lower the protections for
But then only an acre or so farther
individuals in the zone of personal priva-
along in the transcript, Biden picked up
cy, and I will speak to those later, and who
the pace and packed 433 words into an-
want to heighten the protection for busi-
other question. Really impressive. Got his
nesses and corporations.
second wind, I guess.
"Now, one of those people is a Professor
Thomas' responses were, by the way,
Mesito, a fine first-class scholar at Har-
respectively 87 and 55 words long-or
vard University. Another is Mr. Epstein, a
(relatively I suppose you might say) short.
professor at the University of Chicago.
These hearings are, obviously, appropri-
And in the speech you gave in 1987 to the
ate and important. though the questions
Pacific Research Institute you said and I
being put to Thomas so far seem to have
Raymond R.
quote: 'I find attractive the arguments of
more to do with politics and ideology than
with the suitability of his intellectual and
Coffey
scholars such as Stephen Mesito who de-
fend an activist Supreme Court that
professional qualifications.
would'-not could, would-'strike down
What seems most to concern the liberal
laws restricting property rights.'
Democrats on the committee is that Thomas-can
"My question is a very simple one, Judge. What
you believe it?-is not a liberal or a Democrat?
exactly do you find attractive about the arguments of
I wish I could rerun here the two Biden questions
Professor Mesito and other scholars like him?"
cited above, but obviously I don't get the space he
That's a "very simple" question? Is that even a
does. So, and I know you're going to be sorry about
coherent question? Biden proceeded to complain
this, I'll just do the first. To wit:
that he was "not quite sure" he understood Thomas'
"Judge, as Sen. Danforth said. he hopes we have
answer. I don't understand how Thomas understood
read your speeches. I assure you I have read all your
the question.
speeches, and I have read them in their entirety.
Along with a remarkable attention span, Thomas
And, as I indicated in my opening statement, what I
would seem to possess a laudable tolerance for
want to talk about a little bit is one of the things you
putting up with pretentious windbaggery.
mention repeatedly in your speeches so that I can be
better informed by what you mean by it.
Raymond R. Coffey is the editor of the Chicago
"Whether you are speaking in the speech you
Sun-Times editorial pages.
Chicago Sun-Times
SEPTEMBER 12, 1991
3
By Michael Briggs
we heard the hushed whispers
about illegal abortions and individ-
Washington Bureau / Chicago Sun-Times
uals performing them in less-than-
WASHINGTON-Supreme
safe environments.
On a per-
Senators dispute
Court nominee Clarence Thomas
sonal level, I am very, very pained
told skeptical senators Wednesday
by that. I think any of us would be.
Thomas' denial
that he has no opinion on the 1973
I wouldn't want to see people sub-
Roe vs. Wade decision affirming a
jected to torture of that nature."
woman's right to an abortion.
However, Thomas said it would
of abortion view
"I did not, and do not, have a
compromise his impartiality as a
position on the outcome," he said.
justice if he took sides on the
Sen. Paul Simon (D-III.) doubt-
underlying legal issue, which is
ed that. "If that's true, he's the
sure to come up before the high
only person in that room who does
court again.
not have an opinion," Simon said
Thomas talked more openly,
outside the crowded hearing room
critics noted, about other legal
where Thomas' nomination is be-
issues that also could come before
ing considered. "I'd feel more
the court.
comfortable if he said, 'I have an
Thomas told Simon, for exam-
opinion, but I'm not going to ex-
ple, that he accepted the legal
press it.' "
standard the court uses to decide
Sen. Patrick J. Leahy (D-Vt.)
disputes over separation of church
also was unconvinced. He remind-
and state, a perennial issue al-
ed the 43-year-old Thomas that
ready on the court's calendar for
he was a student at Yale Law
the coming term.
School when the landmark case
Simon had recounted the exper-
to help minorities overcome dis-
was decided by the high court,
ience of a Jewish congressman
crimination.
and recounted speeches and arti-
who as a youngster in Kansas felt
"We all have to do as much as
He's biased-for the Cowboys
cles by Thomas that referred to
singled out when he was excused
possible to include members of my
the issue. "I can't believe that all
from saying prayers-later banned
race in society," Thomas said. "At
WASHINGTON-Supreme
large extent, referees-are fair
of this was done in a vacuum,"
by the court-at his public school.
the same time, you don't want to
Court nominee Clarence Thom-
and impartial, even when we
Leahy said.
"I'm sensitive to our desire in
discriminate against others." He
as didn't hesitate to take sides
don't agree with the calls."
On the second day of hearings
this country to keep government
also stood by his view that quotas
on one issue at his confirma-
Senate Judiciary Committee
before the Senate Judiciary Com-
and religion separated," Thomas
stigmatize minorities they are de-
tion hearings Wednesday. He is
Chairman Joseph R. Biden Jr.
mittee, Leahy and other Demo-
said. "When someone feels that he
signed to help.
a Dallas Cowboys fan.
D-Del.) said he appreciated
crats repeatedly pressed Thomas
or she is excluded because of cer-
He assured Sen. Arlen Specter
Thomas brought up football
Thomas' candor about his pro
for his legal view on abortion and
tain practices, such as those reli-
(R-Pa.), however, that as a justice
to illustrate that judges have to
football loyalties: "Thank you
he repeatedly declined to answer.
gious practices, I think we need to
he would respect the intent of
seem unbiased.
very much. We got a solid an-
"To do that would seriously com-
question whether or not govern-
Congress in ruling on civil rights
"My Dallas Cowboys played
swer."
promise my ability to sit on a case
ment is involved."
law cases. "I advocated as an ad-
the Redskins. Monday night. I
Sen. Alan K. Simpson (R-
of that importance involving that
Thomas also said he had sup-
vocate, and now I will rule as a
am totally convinced that every
Wyo:) said Thomas' allegiance
important issue," Thomas told
ported scholarships for minorities.
judge," Thomas told Specter.
referee in those games is a
to the Cowboys "in this nest of
Sen. Howard M. Metzenbaum (D-
Without directly saying how he
Thomas also drew a distinction
Redskins fan, but none would
Redskin fans
discloses a
Ohio), who voted last year against
would rule if such scholarships are
between his previous role as a
admit to it," Thomas said.
degree of independence which
confirmation of Thomas to be a
challenged as illegal race discrimi-
policymaker and the role of the
"We want to feel that the
will serve you very well on the
judge on the federal appeals court
nation, he said he set up a minor-
courts as he came under renewed
referees-and judges are, to a
court."
-Michael Briggs
in the District of Columbia.
ity scholarship program when he
questioning about whether he has
Metzenbaum said he was "terri-
headed the Equal Employment
shifted his views on "natural law."
fied" that if the Supreme Court
Opportunity Commission.
Sen. Howell Heflin (D-Ala.), a
for his nomination.
"political theory" when he was in
reversed Roe VS. Wade, "women
A black nominated to replace
crucial swing vote on the commit-
"I have been consistent,"
the administration of President
will once again be forced to resort
the retiring Justice Thurgood
tee, wondered whether Thomas
Thomas said.
Ronald Reagan but has not relied
to brutal and illegal abortions."
Marshall, Thomas was questioned had undergone a "confirmation
Thomas said he was interested
on the notion as a judge to decide
Thomas sympathized: "As a kid,
about
his
criticism
of
racial
quotas
conversion?
to
win
Senate
support
in the concept of natural law as a
cases.
The Hartford Courant
Thursday, September 12, 1991
Thomas controversy
echoes debate on Bork
By MIRANDA S. SPIVACK
off the bench that he was dubbed the
Courant Staff Writer
"stealth candidate." And unlike the
has had a preconceived idea about an
often contentious Bork, Souter was
issue."
WASHINGTON - The nominee
restrained in his discussions with ju-
But Kate Michelman, head of the
has written volumes and made con-
diciary committee members. Thom-
National Abortion Rights Action
troversial speeches. He is questioned
as has followed Souter's example.
League, which opposes the Thomas
nomination, is not so sure. Thomas,
about his views on privacy and abor-
But some Democratic senators
tion. His commitment to civil rights
like Bork. is suffering from a credi-
are expressing skepticism about
has been challenged. There is talk of
Thomas. Although most of the pan-
"confirmation conversion."
el's eight Democrats haven't said
bility problem, she said.
It may sound like the 1987 confir-
how they'll vote on the nomination,
"Thomas has spent the last two
mation hearings for Supreme Court
some are pressing Thomas to spell
days converting his record to fit the
nominee Robert H. Bork, a former
out his positions on controversial le-
times," she said. "As a nominee he is
Yale Law School professor. But it's
gal issues, noting that he hadn't shied
saying thing very different from
1991, and the judge on the hot seat in
away from doing so while head of the
what he said for the past five to 10
the Senate Judiciary Committee is
Equal Employment Opportunity
years. I don't think you change over-
Clarence Thomas, a Yale Law
Commission during the Reagan ad-
night as a judge."
School graduate.
ministration.
The verbal pushing and pulling in
Although the comparison is not a
the Thomas nomination is also evi-
perfect one, the first two days of the
Thomas has been a federal ap-
dent within the ranks of the 14-mem-
Thomas hearings often have borne
peals court judge for 18 months. He
ber judiciary committee. Members
an eerie resemblance to Bork's. And
said this week that, as a policy mak-
of the panel still seem to be smarting
while no one is predicting that
er, he advocated certain views, but
over the contentious Bork hearings
Thomas will be defeated, as Bork
that as a federal judge, he has an
and struggling to define their role in
was, the same controversies that
open mind.
the confirmation process.
swirled around Bork are now encir-
Citing Thomas' participation in a
Many have alluded to the Bork
cling Thomas.
Reagan administration group that
hearings, or made outright compari-
"The issues are essentially the
criticized the 1973 Roe VS. Wade
sions.
same," says Thomas L. Jipping, a
Supreme Court ruling that legalized
Strom Thurmond, the 88-year-old
lawyer with the conservative Coali-
abortion, and pointing to a speech in
South Carolinian who is the top-
tions for America, which is support-
which Thomas praised an article by
ranking Republican on the commit-
ing the Thomas nomination. "Abor-
Lewis Lehrman, a prominent con-
tee, was among the first to issue a
tion, privacy, equal rights. And both
servative who once ran for governor
reminder of the Bork hearings, urg-
have non-judicial writings."
of New York, that was critical of the
ing senators not to probe Thomas'
In addition, the Bork nomination
abortion ruling, Sen. Patrick J. Lea-
views as deeply as they did Bork's:
left the Senate Judiciary Committee
hy, D-Vt., said during Wednesday's
"The issue of judicial philosophy,
awash in dispute over its proper role
hearing, "I can't believe all of that
or ideology, has often been raised in
in the Supreme Court nomination
was done in a vacuum."
relation to recent nominees to the
process - also a concern during the
Supreme Court If a philosophical
Thomas hearings.
Replied Thomas: "I do not have a
'litmus test' can be applied to defeat
Writings and speeches by Bork
position" on the abortion ruling. Lea-
a nominee, then the independence, of
before he became a federal appeals
hy later said, "You've gone on the
the federal judiciary would be un-
court judge seemed to derail his Su-
bench. You haven't gone into a mon-
dermined."
preme Court nomination. He had
astery."
Sen. Howell Heflin, an Alabama
written critically on issues ranging
Jipping and other supporters of
Democrat and former state supreme
from integrating lunch counters in
Thomas complain that such ex-
court justice, brought a different
the South to privacy provisions in
changes are unfair.
perspective. "I will be looking to see
Griswold VS. Connecticut, a 1965
"It's not that [Thomas] has
if you intend to bring a rigidly ideo-
landmark case on the right of mar-
logical agenda to the court. I will
changed. It's the first time he has
ried couples to use contraceptives.
had the chance to talk," Jipping said.
want to know if you respect the prin-
Quizzed extensively by members
"This is no confirmation conversion.
ciples of stare decisis [abiding by
of the Senate Judiciary Committee,
Thomas is distancing himself from
precedent] and judicial restraint,
Bork failed to persuade them that his
[opponents'] ] caricature of his
and most importantly, if you intend
prior work either was a purely aca-
to turn the clock back on almost 30
record."
demic undertaking or that, in some
years of racial progress and harmo-
instances, his views had evolved.
Armstrong Williams, a former as-
ny
Last year's Supreme Court nomi-
sistant to Thomas at the Equal Em-
Sen. Edward .M. Kennedy, D-
nee, David H. Souter, managed to
ployment Opportunity Commission,
Mass., one of Bork's most vocal op-
avoid similar controversy, largely
said Thomas can't be pigeonholed.
ponents, took a low-keyed approach
because he had such a skimpy record
"You can't stereotype him. He never
to Thomas' nomination. But he ap-
peared to be countering criticism
that the committee went too far in
quizzing Bork.
"The president makes the nomina-
tion, but it is a shared responsibility
[with the Senate]. Any fair reading of
the Constitutional Convention shows
that it is a shared responsibility," he
said.
The
Philadelphia
Inquirer
September 12, 1991
Our 'aristocracy of the robe'
includes many Horatio Algers
By HOWARD G.
sidered to be of privileged origins,
SCHNEIDERMAN
If Thomas is
while those coming from middle
and lower-class backgrounds were
o racism and poverty deter-
approved, he won't be
regarded as unprivileged (but not
D
mine one's fate? Liberals gen.
necessarily underprivileged).
erally say yes. But not 80
the first son of
If approved by the Senate, Judge
Judge Clarence Thomas, a black, con-
Thomas would join about one-third
servative Republican, President
poverty on the bench.
of all the justices in the court's his-
Bush's nominee to sit on the U.S.
tory who have risen from similarly
Supreme Court.
unprivileged origins to become arts-
The story of Judge Thomas' rise
ica, "I should reply without hesits.
tocrats of the robe.
from abject poverty to his nomine-
tion that it is not among the rich,
About half of the 32 justices with a
tion to the Supreme Court could have
who are united by no common tie,
middle and lower ranking came
come straight from the pen of Hora-
but that it occupies the judicial
from solid middle-class farming or
tio Alger. If. however, this raga-to-
bench and bar," institutions that
small-town families. Others in this
robes story is a conservative's demo-
Tocqueville said "form the most pow.
category, even less privileged,
cratic daydream, the thought of this
erful, if not the only. counterpoise to
ranged from the sons of poor farmers
conservative grandson of a black
the democratic element
and lower-status small-town resi-
to
neu-
sharecropper sitting on the bench
tralize the vices inherent in popular
dents to the two most underprivi-
seems to be a liberal's nightmare.
government."
leged, Abe Fortas and Thurgood Mar-
But the Supreme Court, about
How does Clarence Thomas fit into
shall, when ranked against their
which few Americans know much,
this aristocracy of the robe? In a
court peers.
has always been a peculiar American
recent study, "From Rags to Robes,"
Fortas, the son of immigrant Or-
institution where democratic day.
published in the May-June issue of
thodox Jews, grew up in the ghetto
dreams and nightmares often meet
Society magazine. E. Digby Baltzell,
of Memphis, Tenn. His father, a cabi-
head-on. The great irony about the
of the University of Pennsylvania,
net-maker, taught himself English,
court, and perhaps its greatest
and I showed that contrary to con-
but his mother remained illiterate.
strength, is that, in the midst of our
ventional thinking. Horatio Alger
Marshall grew up in a black ghetto
democracy. it is nothing less than
stories are far more applicable to the
in Baltimore. His father was a ser-
aristocratic in nature - a virtual
appointed members of the Supreme
vant at the exclusive Gibson Island
aristocracy of the robe. The justices.
Court than one might expect. In fact,
Club, and his mother taught at an all-
appointed for life by the president
over the course of American history,
black elementary school - which
with the advice and consent of the
the appointed and aloof justices are
placed him in the black middle class
Senate, are responsible only to their
far less likely to have been born to
of that era.
personal and professional con.
privilege than have the presidents
In contrast to the appointed justices,
sciences. These justices, many of
who appointed them.
far more of the popularly elected pres-
whom lived, like Judge Thomas,
We ranked the first 96 Supreme
idents have come from privileged ori-
rage-to-robes stories. are uniquely po-
Court justices by social origin and
gins than might be expected from the
sitioned. as institutional aristocrats,
grouped them into three social class
"log cabin myth." The justices were
to balance the leveling and all too
levels: upper, upper-middle and, as a
more than twice as likely as the presi-
short-term values of democracy.
single category, middle and lower.
dents to have originated in the middle
"If I were asked where I placed the
For the purposes of our study. jus-
and lower classes. Of the 40 presidents
American aristocracy," wrote
tices ranked in both the upper and
from George Washington to George
Tocqueville in Democracy in Amer-
the upper-middle classes were con-
Bush, only 17 percent were of unprivi-
leged origins, while 83 percent were
of either upper or upper-middle class
backgrounds.
And, throughout American history
the proportion of justices of middle-
and lower-class origins has been
steadily increasing: 16 percent in the
period 1789-1850; 23 percent in 1850-
1901; 47 percent in 1901-53; 78 percent
after 1953. That many of these jus-
tices of unprivileged origins have
been conservatives, like Judge
Thomas, and George Sutherland and
James F. Byrnes before him, gives
further testimony to the fact that
class is not destiny.
In fact, many of the white liberal
Democratic senators now relentless-
ly questioning Judge Thomas are
themselves products of very privi-
leged backgrounds, far more privi.
leged than the black conservative
Republican sitting before them hop-
ing to turn his nightmare begin-
nings into the American dream. and
go from the lowest of social classes to
the highest court in the land.
22
The
Philadelphia
Inquirer
September 12, 1991
PC brigades are
on the defensive
By RONALD JAMES
cultural curriculum, which deplores the West's
"eradication of many varieties of traditional cul-
F
or the battle-scarred veterans of the politi-
ture and knowledge." Schlesinger asked: "Like
cal correctness wars, it's been quite a
infanticide? slavery? polygamy? subjugation of
year. This time last year. the "McCarth-
women? suttee? veil-wearing? clitorectomies?"
yites of the left," who - while ignored by most
Schlesinger noted that the curriculum says
Americans, are still taken seriously in education
nothing about "the influence of European ideas
and the media - were proceeding unscathed
of democracy. human rights. self-government,
toward establishing an orthodoxy of thought
rule of law." Of course the ideologically ortho-
that they hoped to foist on the rest of us.
dox have dismissed all that as the rantings of
On college campuses, we saw the now familiar
soon-to-be-dead white European males threaten-
speech codes prohibiting any utterance that
end by the victims' revolution.
might offend the officially certified victims of
Still, the counterattack has had its effect. The
the "white, male, heterosexual hegemony." In
Temple University Faculty Senate, in the spring,
both the college and public school curriculums,
worked up the courage to "table" the demand
we saw the emergence of "multiculturalism"
made by the previous spring's demonstrators that
and "Afrocentrism," which Princeton historian
a race sensitivity course be required for all stu.
Bernard Lewis called "a few scraps of truth
dents. One professor was even willing to go on
record as saying that for the faculty to approve
such a requirement would be giving in to the
forces of political correctness. And around the
They will all be out for the
country many colleges and universities are ton-
Clarence Thomas
ing down their orientation-week sensitivity ses-
sions and withdrawing or limiting speech codes.
nomination.
Still. we should not underestimate the influ.
ence of leftish political orthodoxy. The problem
is institutional - the fashionable left has al.
ways dominated the media and academia, for
amidst a great deal of nonsense."
those of the left tend to be attracted to the
We also saw gestapo-style squads of "students"
more lucrative professions (law and medicine)
and their faculty sponsors threatening and harass-
ing teachers who dared to diverge from the dog-
ma, as in the case of the Harvard professor who
and business. Probably. there will never be true
used the words Indian (rather than Native Amer-
diversity of political opinion either on college
ican) and Oriental (rather than Asian). In New
faculties or in media newsrooms.
York, we saw a committee appointed by the state
Then there are the Judge Clarence Thomas
education secretary recommend a change in the
Supreme Court confirmation hearings, which
school curriculum to reflect the "fact" that
should prove to be a festival of political correct-
Western civilization has destroyed and co-opted
ness. Expect Harvard law professor Derrick Bell
the achievements of non-Western civilizations.
to repeat the slur that Thomas is "black on the
But now the PCers are somewhat on the defen-
outside and white on the inside." Expect a
sive. From their perspective, the dark day was
rhetorical deluge of civil rights orthodoxy like
Dec. 24, when the Newsweek cover story on
that expressed on this page by Temple law
political correctness hit the stands. The story
professor Henry Richardson who described
gave about equal space to both sides, but the
Thomas' nomination as the "promotion of syn.
cover with "Thought Police" in bold letters
thetic opinion" meant "to destabilize genuine
stunned the self-anointed guardians of certified
(my emphasis) black political organizations."
victims and emboldened those trying to work up
Expect to hear 'self-loathing black man" thrown
enough courage to oppose them.
around. All of this is will be an attempt to
The Newsweek article was followed by an issue
marginalize the nominee as an Uncle Tom and
of The New Republic devoted to the subject of
thus not an authentic, legitimate Black American.
"race on campus" and then by the publication of
What we have is not a debate over issues, but
Dinesh D'Souza's Illiberal Education, which fully
rather an attempt to limit the range of ideas open
described and documented the new McCarthy-
for public discussion. In the '50a, right-wingers cast
ism on college campuses. While D'Soura could
those on the left as "un-American" and thus be
be dismissed as a man of the political right, his
yond the pale of legitimate participation in the
book brought forth favorable reviews and arti-
democratic process. Now we have the same thing
cles by eminent academic liberals like C. Vann
from the other side of the political road. The battle
Woodward of Yale and Eugene Genovese, the
has been joined, but It is far from over.
highly regarded Marxist historian.
In his review, Genovese submitted his "First
Law of College Teaching: Any professor who,
subject to the restraints of common sense and
common decency. does not seize every opportunity
to offend the sensibilities of his students is insult-
ing and cheating them, and is no college professor
at all." Genovese focused his fury on "the cowardly
administrators and their complicit faculty."
Arthur Schlesinger Jr., liberal prise-winning his-
torian. dissented from the New York state multi-
The
23
Philadelphia
Inquirer
September 12, 1991 Al
Thomas holds firm
During some of the six hours of
(D., III.).
committee questioning yesterday,
Thomas was confronted with ad-
In another area, Thomas also repu-
dressing the issue of abortion.
diated his previous endorsement of a
controversial 1987 article by conser-
on abortion, denies
He recalled that when abortions
vative Lewis Lehrman calling abor-
were barred by law in many states,
tion a "holocaust" and insisting that
"you heard the hushed whispers
the Constitution gave fetuses a
about illegal abortions and the indi-
"right to life."
viduals who performed them in a
revising his views
less-than-safe environment.
Though in 1987 he called Lehr-
"If a woman is subjected to an
man's article a "splendid example of
environment like that, on a personal
applying natural law," he said dur-
By Aaron Epstein
level, certainly, I am very, very
ing the first day of hearings that he
Inquirer Washington Bureau
pained by that. I think any of us
did not agree with its conclusions.
WASHINGTON Supreme Court nominee Clarence Thomas
would be. I wouldn't want to see
Yesterday, he went even further, as-
denied at his confirmation hearing yesterday that his testi-
people subjected to torture of that
serting that he did not read the arti-
mony appeared to conflict with - or retreat from - his
nature."
cle in 1987 and has not read it re-
previous statements on abortion and other topics.
cently, even though it has been cited
But, he said, "as difficult as it is
He also asserted that he had no ideology or agenda and had
repeatedly by his critics in recent
for me to anticipate
that
kind
of
never discussed the Supreme Court's landmark Roe V. Wade
weeks.
illegal activity, I think it would un-
abortion-rights ruling.
dermine my ability to sit in an im-
Thomas said that he praised the
Despite persistent questioning by Sen. Howard M. Metzen-
partial way on an important case
article only to persuade conserva-
baum (D., Ohio) and other committee members, Thomas
like that."
tives that they should support "more
adamantly refused to say whether women have a constitu-
aggressive enforcement of civil
tional right to terminate a pregnancy.
At another point, Thomas said he
rights."
"To take a position would undermine my ability to be
had never discussed Roe V. Wade, a
impartial,' Thomas said. I am not predisposed one way or
1973 decision that Thomas described
Toward the close of the session
the other on the issue of abortion."
as "one of the more important, as
yesterday, Thomas separated himself
Some Democrats on the Judiciary Committee, which is
well as one that has been one of the
from some conservative justices by
conducting the hearings, criticized Thomas for being less
more highly publicized and debated
saying that he had "no personal dis-
cases."
agreement" with the Supreme
than candid with members of the panel and for distancing
Thomas said he was married dur-
Court's tough 20-year-old test for
himself from his own provocative comments from the past.
Thomas has voiced provocative, conservative opinions in
ing his law school days when the
judging whether government ac-
ruling was issued and too busy to
tions violate the principle of separa-
speeches and articles on subjects such as abortion, working
tion of church and state.
women, welfare, affirmative action and the minimum wage.
think about the topic or discuss the
But rather than defend those opinions at his confirmation
ruling with friends or classmates.
Moreover, he said it was appropri-
ate to use Thomas Jefferson's meta-
hearings, Thomas said some earlier views of his would have
"I went to class, I went to work and
then I went home," he said.
phor of a "wall of separation" be-
no effect on his decisions as a judge.
tween government and religion.
For example, he said that as chairman of the Equal Employ-
In the years since the ruling,
Chief Justice William H. Rehnquist,
ment Opportunity Commission from 1982 to 1990. he freely
Thomas said, his only experience in
among others, has criticized that fig-
took policy positions. But as a federal appeals judge for the
discussing the case was "in the most
last 17 months and a Supreme Court nominee now, "I think it
general sense that other individuals
important to remain neutral in these policy matters," he said.
ure of speech in endorsing greater
express concerns one way or the
government accommodation of reli-
"I advocated as an advocate, and now I will rule as a judge,"
other and you listen and you try to
he added.
gion.
be thoughtful. If you are asking me
Sen. Howell Heflin (D., Ala.) told Thomas that he perceived
whether or not I have ever debated
Commenting on school prayer,
"an appearance of confirmation conversion." That phrase
the contents of it, the answer to that
Thomas expressed compassion for
(See THOMAS on 4-A)
is no."
the feelings of a Jewish elementary
Committee members, however,
school boy who, Simon said, had to
suggests that a nominee deliberately
were clearly skeptical.
leave his classroom each day while
changes his or her views in order to
"If that is true, he is the only adult
his classmates recited a prayer.
win Senate approval.
in the room who doesn't have an
"Any policy of exclusion should be
Sen. Herb Kohl (D., Wis.) said he
opinion on it," said Sen. Paul Simon
considered inappropriate," Thomas
was concerned about Thomas' "can-
said.
dor, his willingness to be forthcom-
Inquirer wire services contributed to
ing." The senator added, "He is tell-
this article.
ing us to just disregard his past
record."
But Thomas' chief Senate backer,
John C. Danforth (R., Mo.), who has
been sitting behind the nominee
throughout the first two days of
hearings, said that committee mem-
bers were asking "whether carica-
tures of his earlier statements are
correct and he says they are not.
That's hardly a confirmation conver-
sion."
NEW YORK POST
SEPTEMBER 12, 1991
27
F you watched Clarence
Thomas tell the story of
feel a catch in your throat,
Judge Thomas deserves sympathy, but
Television ads are one sign;
his early life and didn't
the recruitment of Washing-
ton consultant Kenneth Du-
then you have a problem. If
berstein to organize a public
that story becomes the rea-
of questions about recent
relations campaign and to
son for his confirmation,
COMMENTARY
court decisions, Thomas
"prep" nominees for their
then we have a problem.
seemed almost eager to give
Senate appearances is an-
His vividly painted portrait
Justice Thomas.
to a higher level of constitu-
his views on them.
other.
of growing up poor and black
When the time came for
tional respect? Nothing
The point is that Clarence
It's understandable, given
in the apartheid South of the
questioning, Thomas ap-
much; under the gentle prod-
Thomas has some tough, le-
the fate of Robert Bork, that
1950s was touching and en-
peared decidedly uncomfort-
ding of Orrin Hatch, Judge
gitimate questions to answer,
the White House has sought
raging. We will not soon for-
able with some of the probes
Thomas assured the com-
and those questions have to
to "sell" this latest nominee
get the image of two small
Sen. Joe Biden sent his way.
mittee he had no intention of
do with his sense of what the
as if he were running for of-
boys, with all their belong-
Why did he praise a pub-
going back to the pre-New
Constitution means. They are
fice. And it is true that some
ings in shopping bags, being
lished "natural law" theory
Deal days of striking down
not questions that can be an-
of Thomas' likely opponents
sent to live with their grand-
that would forbid all abor-
government regulation of
swered by a resort to the ven-
are prepared to use just
parents because their
tions? It was, he said, a
the economy.
erable political tradition of
about any club they can find
mother could not afford to
"throwaway" line, a murmur
Is there a constitutional
pointing to the log cabin you
with which to belabor him.
raise them.
of politeness to the author
right to privacy? Yes, but
were born in to prove your
These excesses, however,
whose large checkbook had
I have absolutely no doubt
Judge Thomas would not
link to ordinary folks.
seem to have spawned the
underwritten conservative
JEFF
sketch out even a hint of
about the authenticity of
Because the nominating
idea that if Thomas can pre-
Judge Thomas' memories,
causes. It was a way to get
what that might mean -
process has indeed become
sent himself as an inspiring
or the force those memories
GREENFIELD
conservatives to look kindly
that would, he said, affect his
"political" in recent years,
success story, which he
on civil rights.
have on his life. I have a
Impartiality in future cases.
both sides have resorted to
surely is, that alone will
What did he mean by sug-
But when Sen. Strom Thur-
great deal of doubt, however,
tactics once thought unimag-
prove he belongs on the
tells us anything about
gesting that "economic
about whether any of this
mond read, apparently un-
inable in confirmation pro-
highest court in the land. It
whether he should become
rights" needed to be elevated
comprehendingly, a long list
ceedings.
doesn't - and it shouldn't.
NEWYORK POST
25
By Pete Hamill
SEPTEMBER 12, 1991
Nominee knows the pain of poverty and bigotry
NE image was enough for
HAMILL from Page 4
me, a memory so deeply felt
us; that means he has not forgot-
he said of the American blacks
that even now it brings a visible
ten -them. And we can be sure
who came before him. "But for
ache to Clarence Thomas. In
that he will remember them for
them, I would not be here. Jus-
the rest of his life.
1955, his mother was earning
tice Marshall, whose seat I have
only $10 a week as a domestic in
The worries of American
been nominated to fill, is one of
Savannah, Ga., and could not
women (and many men) that
those who had the courage and
feed her children. She was forced
Thomas might help overturn the
the intellect. He is one of the
to deliver Thomas and his
laws on abortion are obviously
great architects of the legal bat-
brother to their grandfather.
legitimate. As a father of daugh-
tles to open doors that seemed so
"Imagine," he said to this panel
ters and a citizen who remem-
hopelessly and permanently
of pampered white men in Wash-
bers the bad old days of back-
sealed, and to knock down barri-
ington, "two little boys with all
alley abortionists, I never want
ers that seemed so insurmount-
their belongings in two grocery
to see us go back, and Thomas
able to those of us in the Pin
has answered questions on abor-
bags
All the rest, the discussion of
Point, Georgias, of the world."
tion with gobs of legalistic mush.
He cited Martin King and
natural law and prejudgment of
Thomas also might cast an im-
Fannie Lou Hamer, Roy Wilkins
cases, was just talk. The man
portant vote in the growing bat-
who remembered a lost morning
and Whitney Young, Rosa Parks
tle over affirmative action. He
and Dorothy Height; liberals, not
could become part of the contin-
conservatives. "But for them,
when he stood with his brother,
uing Republican war against
there would have been no road to
their belongings packed in gro-
American working people. He
travel." He remembered seeing
cery bags, is not a man who will
might embrace that hyper-
his grandfather, Myers Ander-
orthodox form of conservatism
add to the hurt of the world.
son, working hard, struggling,
(espoused by Robert Bork,
"Our grandparents were two
saving to educate his grandchil-
great and wonderful people who
among others) that places the
dren, sending Clarence to a
interests of the state over those
loved us dearly," he said. "I wish
school run by Catholic nuns.
of individuals.
they were sitting here today. Sit-
Remembers Anderson saying to
ting here, so they could see that
them: "Yawl goin' have mo' of a
But the Supreme Court already
all their efforts, their hard work,
chance than me." Adding: "And
has a conservative majority that
were not in vain. And so that
he was right." Remembers An-
will last for the remainder of my
they could see that hard work
derson saying to him: "Old Man
days and for the lives of most
and strong values can make for
'Can't' is dead; I helped bury
adult Americans. If the majority
a better life."
him."
chooses to do so, it can accom-
This was not some exercise in
And he remembers that al-
plish most of the above without
legal abstraction, nor should it
though Anderson was right, An-
Clarence Thomas. But if he is re-
have been; human beings must
derson was strong, Anderson
jected, he probably would be re-
interpret our laws, not comput-
(who was illiterate) worked all
placed by another intellectual ci-
ers. And Clarence Thomas is a
those hours to buy books to add
pher like David Souter, devoid of
to the meager belongings that
history or a record.
man out of Pin Point, Ga., who
arrived in those grocery bags, he
I'd rather have a man on that
truly learned to be judged on the
content of his character, not the
was still black. He was a great
court who remembers that there
(if anonymous) American and
are people in this country who
color of his skin. It was not easy.
Clarence still heard him called
can fit all of their possessions
He is, after all, a black man in a
nation poisoned from its begin-
"boy" by his inferiors. And God-
into a grocery bag. Some are
nings by the crime of slavery.
fearing, upright, flag-waving
white. Some are black. Some
white men still denied his wife
speak Spanish. Some speak other
The bloodiest, most violent war
in American history was fought,
the use of a public bathroom.
languages. All live under the
We know these things because
Constitution. It's hard to believe
in part, to end that crime. But
the Civil War left the criminals
Clarence Thomas told them to
that this man will harm them.
in power. For a century, the poi-
son of racism was used to main-
tain power in the South and di-
vide working people in the North.
For years, decent people be-
lieved that the only antidote to
this poison was the law. We have
learned the bitter lesson, from
East L.A. to Crown Heights, that
the law was not enough. A per-
fect world seldom follows the
signing of a piece of paper.
Now comes Clarence Thomas
before the Senate Judiciary
Committee as a nominee to
serve on the Supreme Court of
the United States. That is, to
speak for the law. He is to suc-
ceed a great American liberal,
but he wears the label of conser-
vative. He hasn't really told the
story of his passage from the
man who placed a portrait of
Malcolm X on his wall at college
to a man who served Ronald
Reagan. That journey is worthy
of a novel. But it would be a terri-
ble mistake to dismiss Thomas
as a man who has fled his own
heritage for a chance to enter the
white man's country club. He re-
fuses to deny his origins; his
presence before the committee
can only be seen as a celebration
of them.
"So many others gave their
lives, their blood, their talents,"
See HAMILL on Page 24
25
TNEW YORK POST
SEPTEMBER 12, 1991
4
THOMAS DUCKS
'YES' OR 'NO'
ON ABORTION
By MARILYN RAUBER Post Correspondent
WASHINGTON - U.S. Supreme Court nominee Clarence Thomas yesterday de-
scribed the days of back-alley abortions as "torture" for women - but said he hasn't
decided whether abortion should be legal.
Thomas, under pressure from Senate Democrats to show his hand on the controver-
sial issue, said that "on a personal level, I am very, very pained" by the idea of women
undergoing the "agony" of
risky, illegal abortions.
day declared that Thomas
Earlier, Sen. Alan Simp-
"I wouldn't want to see
was "doing a superb job"
son (R-Wyo.), a Thomas
people subjected to torture
under "tough" questioning
ally, dismissed such accu-
of that nature," he said - re-
and added: "I am more
sations as "an act of des-
calling the "hushed whis-
confident than ever that I
peration" by special-inter-
pers about illegal abortions
made the right nomina-
est groups oppposed to
in less-than-safe environ-
tion."
Thomas.
ments" in his hometown of
But at least two commit-
Pin Point, Ga.
tee Democrats sounded un-
Thomas himself blamed
But when pressed again
happy with his perform-
the inconsistencies on his
and again, Thomas insist-
ance - suggesting
past candor - when he
ed: "I have not made a
Thomas is tailoring his an-
touted his opinions as a Re-
decision one way or the
swers to placate the sena-
publican "policy-maker."
other" on whether the high
tors who will vote whether
On civil rights, Thomas
court ruled correctly in
or not to put hom on the
did not back down on his
1973 that women have a
Supreme Court.
longstanding opposition to
constitutional right to
Sen. Howard Metzen-
hiring quotas and bristled at
abortion.
baum (D-Ohio) said
suggestions that he was ad-
"I have no reason or
Thomas' refusal to answer
mitted to Yale law school
agenda to pre-judge the
the abortion question
through a race-based re-
issue or a predilection
makes it "more difficult to
cruitment scale.
to rule one way or the
vote for him."
"I have not during my
other on abortion," the fed-
Even
conservative
adult life been a part of any
eral judge said on the sec-
Democrat Howell Heflin,
quota," Thomas said, de-
.ond day of Senate Judici-
one of the panel's swing
scribing the Yale program
ary Committee hearings
votes, accused Thomas of
as merely an informal effort
into his nomination.
seeming to "give answers
to "reach out and open its
President Bush yester-
that won't hurt him."
doors to minorities."
27
NEW YORK POST
SEPTEMBER 12, 1991
4
Poll: Most minority women pro-choice
WASHINGTON (UPI) - As
The poll was one of the first to
any circumstances."
has an abortion.
black Supreme Court nominee
center on minority women's atti-
But 38 percent said they
teachings of the church."
Clarence Thomas dodges Senate
As womens' income and educa-
tudes on reproductive issues.
thought It would be difficult to
Women responding to the sur-
questions on his views on abor-
tion levels rise, there is a signifi-
"About three-fourths of those
obtain an abortion, according to
vey had little sympathy with the
tion, a new survey shows a
cant increase in support for a
surveyed agreed that the deci-
the poll. Winters said "the pri-
militant tactics of Operation
strong majority of black and
legal right to an abortion, she
sion to have an abortion is one
mary obstacles" were their per-
added.
Rescue and its blockading of
other minority women want the
that every woman must make
clinic facilities.
sonal religious beliefs and
procedure kept legal.
"We are not all Catholic," she
for herself," said Mary Frances
values.
At the same time, the poll also
said. "We do use. birth control.
The survey of 1,157 black, His-
Winters, president of The Win-
Luz Alvarez Martinez, director
We do get abortions.
panic, Asian-American and
revealed that many of those
ters Group, the Rochester, N.Y.,
of the National Latina Health Or-
same women would not seek an
"Some of us who were Catholic
Native American women was
research organization that con-
ganization, said that the poll
abortion themselves - because
left the church over these issues.
conducted for the National Coun-
ducted the poll.
showed 55 percent of Hispanic
Some of us who remain Catholic
cil of Negro Women and the
of their personal values or reli-
"Only 19 percent think that
women feel that It is up to a
gious beliefs.
continue to use birth control and
Communications Consortium
abortion should be illegal under
woman to decide whether she
get abortions in spite of the
Media Center.
THE CHRISTIAN SCIENCE MONITOR
SEPTEMBER 12, 1991
18
Judge Thomas Is Locked in to Laissez Faire
law. I think he was right in 1968 and that
empted. How is this question to be an-
Thomas seems remarkably indifferent.
his words have some profound implica-
swered about Judge Thomas?
The nicest thing one could say about
By James Boyle
tions for Judge Thomas.
In comments that have often been
these comments is that Judge Thomas's
All judges have an ideology, a set of
quoted since his nomination to the Su-
philosophy is so ingrained that he insists
values and criteria that they use to "illu-
preme Court, Judge Thomas once por-
on it even when it is contradicted by the
A
S Judge Clarence Thomas's confir-
minate" the meaning of the law. For some,
trayed his sister, Emma Mae Martin, as
facts, even when Horatio Alger could not
mation hearings proceed, some
the intent of the framers is what counts;
welfare-dependent, trapped in a cycle of
have overcome the structural barriers in-
senators will object to scrutiny of
for others it is economic efficiency. Some
weakness and reliance on the govern-
volved. Even when it is his own sister. Can
his beliefs. After all, they will say, this is
judges think the words of the law alone
ment. This is the picture that his laissez
we doubt. he would do the same thing as
a judge. His job is to apply the law, not
will decide the case; others think that you
faire philosophy tells him "must" be there.
a Supreme Court justice when the people
make it. The Senate should be concerned
must look to its purpose, or to some gen-
But as Joel Handler pointed out in a letter
whose lives depended on his decisions
with his competence, not his empathy for
eral set of principles underlying our social
to the New York Times, the reality is en-
were strangers?
the powerless or his view of the world.
order. This issue cuts across party lines.
tirely different.
Twenty years ago, Robert Bork told us
There is an answer to this objection.
Conservatives habitually browbeat lib-
that the question was not whether judges
Ironically, it comes from another contro-
erals with charges of "judicial legislation,"
versial conservative nominee to the Su-
but they, too, cannot agree among them-
I
N fact, Ms. Martin's story is that of a
would have to make law, but how. The
woman who, unlike her brother, was
greatest judges have made law with rever-
preme Court, Judge Robert Bork. "It is
selves on the right way to interpret the
not sent to live with their business-
ence, with an understanding for the pow-
naive to suppose that the [Supreme]
law. (Judge Bork, for example, has at one
man grandfather. Instead, she finished
erless that illuminates the legal materials.
Court's present ills could be cured by ap-
time or another believed each of the
high school, married, had children, and
They have had a skepticism about power
pointing justices determined to give the
above views to be "undeniably" correct.)
worked hard to support her family at a
- all forms of power, whether governmen-
Constitution 'its true meaning, to work at
Judge Thomas apparently favors natu-
variety of grueling minimum-wage jobs, a
tal or corporate or entrenched in a com-
'finding the law' instead of reforming SO-
ral-law philosophy and laissez faire politi-
task made all the more difficult after her
munity. They have had a respect for un-
ciety. The possibility implied by these
cal theory as his guides to the meaning of
husband left her. She went on welfare for
ruly facts and a willingness to doubt.
comforting phrases does not exist
The
the law. Should this disqualify him from
a time only to take care of a sick relative.
Thurgood Marshall was such a justice.
question
is not whether courts should
confirmation? Not at all. But if all judges
Ms. Martin is now working as a cook. Of
The record indicates that Mr. Thomas is
make the law, but how and from what ma-
have an ideology, then the Senate should
her three children, one is employed, one
not. The confirmation hearings should
terials."
reconsider the questions it wants to ask.
has been laid off, and the third is in
ask whether he falls below not only the
Judge Bork wrote these words in 1968.
One important question is whether this
school.
standard of greatness, but the standard of
Then, it seemed obvious to him that the
particular judge would ever modify his
Professor Handler concludes that this
the acceptable.
vagaries of language and history made it.
creed because of compassion or contrary
story is not one of welfare dependency,
impossible for a judge simply to "apply"
evidence, or whether it shapes his percep-
but of courage in the face of racism.
James Bogle is " Visiting Professor
the law. Things are clearer to him now. He
tions SO strongly that contrary evidence
structural poverty, sexism, and lousy
of Law at Boston University Law
says he has no difficulty in "finding" the
will be explained away, compassion pre-
health care - all problems to which Judge
School.
29
THE CHRISTIAN SCIENCE MONITOR
SEPTEMBER 12, 1991
Background and Ability
Qualify Thomas for Court
As Clarence Thomas's Senate
confirmation hearings enter their
third day, who will emerge - a judge
fitted for the nation's highest bench, or
a conservative ideologue?
were held up by the professor as
a model for the rest of the stu-
By Stephen M. Shapiro
dents.
After law school, Thomas
worked as a lawyer in the private
T
HE Supreme Court's work
sector, served as an assistant at-
extends to every facet of
torney general in Missouri, joined
life in the United States.
Sen. John Danforth's staff in
Each year the high court consid-
Washington, and served as assist-
ers more than 4,000 applications
ant secretary in the Department
for review and renders decisions
of Education. As chairman of the
in approximately 160 cases.
Equal Employment Opportunity
Plainly, a Supreme Court nomi-
Commission (EEOC), Thomas
nee's qualifications must be con-
rehabilitated an agency that had
sidered against the broad range of
earned harsh criticism from the
issues that the justice will con-
General Accounting Office,
front, not only this year but for
boosting both the efficiency and
many years to come.
morale of his staff.
Because of these realities, the
Perhaps the best measure of
Senate confirmation hearings on
Thomas's judicial fitness is his
Clarence Thomas should not be
record as a judge on the Court of
focused exclusively on abortion
Appeals for the District of Colum-
or racial quotas. They should ex-
bia Circuit, second in importance
plore Judge Thomas's judicial fit-
only to the Supreme Court. Al-
ness, measured by his independ-
though he has served for only one
ence, integrity, ability, and life
year, Thomas has participated in
experience. Evaluated under
deciding more than 100 appeals
these traditional standards, Cla-
and has written majority opinions
rence Thomas is an excellent
in more than 20 cases.
choice for the Supreme Court.
His opinions are concise and
Diversity of experience is an
clear, written with recognition
important qualification for a
that the public is entitled to prac-
judge on any court. Thomas's
tical guidance from appellate
story is an impressive one. Raised
judges.
in an environment of discrimina-
tion and deprivation, but edu-
At a time when the war against
cated by family members and
drugs and violent street crime are
teachers committed to the values
of nationwide concern, it is reas-
of discipline and scholarship, he
suring to see Judge Thomas's
attended Holy Cross and Yale Law
mastery of criminal law. His opin-
School. In a course on federal tax-
ions show a reluctance to reverse
ation - among the most daunting
criminal convictions on legal
courses a law student faces -
technicalities, but a readiness to
set aside convictions that are un-
Thomas's examination answers
supported by the evidence. Judge
Thomas has dealt sternly with
drug dealers in several opinions,
The Christian Science Monitor
con't.
30
including his affirmance of a con-
chairman, he collected nearly $1
viction of drug traffickers plying
billion on behalf of American
their wares in an "open air drug
workers. And he chastised the
bazaar" in the nation's capital (US
Reagan administration for what
v. Rogers). A judge who is tough
he believed to be tardiness in pur-
on crime but alert to unfairness in
suing voting rights reform.
the criminal justice system will
Significantly. Thomas's own
not appear outside the main-
experience with racial discrimina-
stream of American opinion.
tion is not confined to abstract
The Supreme Court sits atop a
theory. As he explained in a re-
pyramid of agencies and bureaus
cent interview. "I've showed up in
that regulate the private enter-
some of the nicest places in this
prise system, and it makes law in
city [Washington, D.C.]. You walk
business disputes under a host of
in one of the top-of-the-line
constitutional and statutory pro-
restaurants, people look at you
visions. Because its jurisdiction
like you're out of your mind
In
as a business regulator is nation-
my own neighborhood, I used to
wide and its word final, the Su-
get stopped by the cops." Ex-
preme Court has much to do with
periences such as these are not
the competitiveness and prosper-
likely to be forgotten by a newly
ity of our economy. Thomas has
appointed Supreme Court justice,
delivered a series of thoughtful
nor are they likely to be dupli-
opinions in business cases. In one
cated by another nominee if
widely publicized antitrust case
Thomas is rejected.
(US V. Baker Hughes Inc.), he
Thomas's opposition to quotas
thoroughly refuted the Bush ad-
and racial preferences arises not
ministration's economic analysis.
from a reluctance to challenge
Some critics have found trou-
discrimination. but from an hon-
bling Thomas's scholarly writing
est disagreement over the best
on constitutional interpretation,
means to achieve racial equality.
including his references to "natu-
Racial preferences. in his view, re-
ral-law" reasoning. a legacy of the
sult in unfair reverse discrimi-
framers of the Declaration of In-
nation. while perpetuating de-
dependence, who believed certain
pendence upon a welfare state.
fundamental principles of liberty
Only the most rigid advocates
and equality to be self-evident.
of racial quotas and preferences
Thomas's sympathy for nat-
would suggest that Thomas's
ural-law reasoning derives from
views are disqualifying for a posi-
the founders of the Constitution
tion on the Supreme Court. Most
and the writings of Abraham Lin-
Americans, who support the goal
coln. If special-interest advocates
of a color-blind legal system,
are uneasy about this tradition, it
agree with his assessment.
is a reflection of their own dis-
tance from the American main-
P
ERSONAL attacks on Judge
stream.
Thomas. voiced in the press
Thomas's sharpest opposition
in recent weeks, do little to
comes from certain leaders of the
advance the search for the nomi-
civil rights movement who have
nee's judicial qualifications. Flor-
criticized his views on quotas and
ence Kennedy, a pro-choice advo-
racial preferences. But this differ-
cate. is quoted as stating that
ence over one facet of the civil
"we're going to Bork him. We're
rights agenda should not obscure
going to kill him politically."
Thomas's accomplishments as a
Thomas himself appears to be
crusader for racial justice. As he
braced for the worst. As he com-
explained in one of his prior Sen-
mented in a recent interview,
ate confirmation hearings: "The
"When you're up before those
reason I became a lawyer was to
confirmation hearings, it's like
make sure that minorities, indi-
going through Dante's Inferno.
viduals who did not have access
When you get up there, you
to the society, gained access."
just hope that you don't get de-
Those who know him best,
stroyed so that even if you don't
such as the liberal dean of the
make it, you can go on with your
Yale Law School. Guido Calabresi,
life." Lobbyists who fuel this in-
and Margaret Bush Wilson,
ferno may well do more harm to
former national chair of the
their own credibility than to the
NAACP. predict that Thomas's
nominee.
confirmation will advance the
Clarence Thomas's career as a
cause of civil rights. In Dean Cal-
public servant and his personal
abresi's words. "He is a decent
triumph over poverty and dis-
human being. who cares pro-
crimination make it impossible to
foundly for his fellows
[He]
credibly characterize him as a re-
does know the deep need of the
actionary jurist insensitive to
poor and especially of poor
racial justice.
blacks. and wants to help."
As chairman of the EEOC. Cla-
Stephen M. Shapiro. a part-
rence Thomas went to court on
ner at Mayer: Brown & Platt in
behalf of victims of racial discrim-
Chicago. is a former deputy so-
ination far more often than his
licitor general. He has argued
predecessors. He adopted a new
cases for the federal govern-
policy of bringing every meritori-
ment in the Supreme Court and
ous case to litigation and insisted
is co-author of "Supreme Court
on tough new sanctions for viola-
Practice" by Stern. Gressman &
tors. During his tenure as EEOC
Shapiro.
31
THE
SUN®
SEPTEMBER 12, 1991
A1
Thomas refuses to discuss
constitutionality of abortion
that he had left all those views be-
By Lyle Denniston
Washington Bureau of The Sun
hind when he became a federal judge
constitutional matter with the panel.
Mr. Metzenbaum and Sen. Pat-
last year and likened himself to a
rick J. Leahy, D-Vt., made the most
WASHINGTON - Supreme
"runner" who has to "strip down" in
sustained effort to draw him out on
Court nominee Clarence Thomas put
order to perform successfully.
the question. The nominee told Mr.
one constitutional issue - abortion
It was unclear what impact the
Leahy that he had never debated the
- totally out of bounds yesterday as
nominee's testimony was having on
the 14 senators on the committee.
Roe decision with any acquaintance,
he discussed with senators his views
did not remember discussing It in
After yesterday's session, Sen. Paul
on a lengthening list of disputes that
any way as a law student and had no
Simon, D-III., said of the day's devel-
now rage among the justices.
present position at all on it.
In a day of sometimes tense spar-
opments: "I don't think any votes
Mr. Leahy also pressed him on
were changed, one way or the other."
ring with both Democrats and Re-
whether fetuses have a constitution-
But the wide distance Judge
al right to life, as conservative theo-
publicans on the Senate Judiciary
Thomas was placing between his
rist Lewis Lehrman suggested in a
Committee, federal appeals Judge
policy expressions of the past and
magazine article that Judge Thomas
Thomas took positions on the kind of
the things that he said he now would
privacy that the Constitution pro-
consider as a judge left two members
once praised in a speech. Waiting an
unusually long time before answer-
tects most, on the way to protect reli-
of the committee openly skeptical.
ing, the nominee said: "I can't think
Sen. Herb Kohl, whose turn to
gion from government interference,
of any cases that have held that."
on the way to judge inequality under
question the judge comes this morn-
In discussing other constitutional
the Constitution and on the court's
ing, told reporters at the close of yes-
disputes that currently divide the Su-
power to overrule civil rights rulings.
terday's session: "He took major
preme Court, Judge Thomas said:
But when asked. as he was nearly
parts of his past and said, 'Forget It.'
He believes the Constitution
a score of times, about whether he
He is saying that we are to 'disregard
protects "marital privacy" as a "fun-
thinks the Constitution includes a
major parts of what I've done.'
damental right" - a position at least
The Wisconsin Democrat said
that that "will be a factor" for some
two current justices expressly reject.
woman's right to seek an abortion,
he said every time that it would com-
senators when they decide how to
He had no difficulty with vary-
promise his "impartiality" to answer.
vote. Judge Thomas "needs to ex-
ing levels of protection for equality
that the court has spelled out: the
The most he would say was that
plain himself more fully. He needs to
greatest for minorities, somewhat
he was not "predisposed to rule one
give more careful, more candid ex-
less for women, even less for others
way or the other on the issue of abor-
planations," Mr. Kohl said.
- a position that at least one of the
tion, which is a difficult Issue."
Sen. Howell Heflin. D-Ala., won-
dered aloud whether the nominee
current justices thinks is wrong.
In his second day in the commit-
tee witness chair, Judge Thomas
was undergoing a "confirmation con-
He disagreed with a six-justice
majority position declared at the end
went even further than he had the
version." He told Judge Thomas:
of last term: that the court should
day before to dismiss most of his
"That can affect the evaluation of
feel freer to overrule civil rights deci-
past criticism of modern court rul-
members of the committee as to in-
sions than it should those involving
tegrity and temperament."
economic and property rights.
ings as mere policy commentary and
Outside the room, Mr. Heflin visi-
said repeatedly that he would not
bly bristled at a reporter's suggestion
carry those views with him if the
that he had only been joking.
Senate approved him for the court.
One of the nominee's key GOP
In tones that at times almost
supporters on the committee, speak-
seemed pleading. Judge Thomas said
ing on condition of anonymity, said
that Judge Thomas would suffer as a
See THOMAS, 5, Col. 3
result of seeming departures from
his earlier views only If senators
Some in Black Caucus, which oppos-
were convinced that those were
es Thomas, predict confirmation. 5A
"clear deceptions." The senator said
they were not of that character.
Although Judge Thomas suc-
ceeded throughout the day in avoid-
ing 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. Metzen-
baum, D-Ohio, expressed worry over
a return to "brutal and illegal abor-
tions," should the court overrule Roe
vs. Wade, the 1973 decision estab-
lishing an abortion right. Judge
Thomas expressed concern for wom-
en who might face such a prospect.
Recalling that as a child he had
heard "hushed whispers" about un-
safe and illegal abortions, the nomi-
nee 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 under-
mine my ability to sit in an impartial
way" if he discussed abortion as a
THE
SUN®
SEPTEMBER 12, 1991
5A
Some blacks in Congress
concede post to Thomas
By Arch Parsons
Washington Bureau of The Sun
Representative
WASHINGTON - Some key
members of the Congressional Black
John Conyers Jr.,
Caucus, an early opponent of the ap-
pointment of Judge Clarence Thom-
D-Mich., said Judge
as to the Supreme Court. acknowl-
Thomas would win
edged yesterday that President
Bush's nominee is likely to be con-
Senate confirmation
firmed by the Senate.
unless there is a
As an estimated 20,000 politically
minded black Americans began ar-
"surprise" during
riving here for the caucus's annual
"legislative weekend." Representa-
the current hearing.
tive John Conyers Jr., D-Mich., se-
nior member of the caucus. said
Judge Thomas would win Senate
The weekend will also include a
confirmation unless there is a "sur-
fashion show and prayer breakfast.
prise" during the current hearing "or
Mr. Espy announced that Su-
he shoots himself in the foot."
preme Court Justice Thurgood Mar-
Another Democratic member of
shall, who is retiring after 24 years
the caucus respected for his political
as the first and only black to serve
astuteness, speaking on the basis of
on the court, will be honored at an
anonymity. said flatly that Judge
awards dinner - and plans to at-
Thomas would be confirmed.
tend it. Justice Marshall, 83, was re-
The caucus consists of all 25
leased from the hospital on Saturday
black Democratic members of the
after surgery to implant a heart
House and a lone black Republican,
pacemaker.
conservative Gary Franks of Con-
necticut. who has stood against his
Mr. Espy said the "galleries" at the
Democratic colleagues and favored
Senate Judiciary Committee hearing,
confirmation of Judge Thomas since
where Judge Thomas is testifying.
Mr. Bush nominated him in July.
will be "full of our people" today and
tomorrow. But no demonstration is
The caucus will have on hand
planned.
this weekend a potential army of lob-
byists to press for Senate rejection of
Mr. Conyers is to chair a meeting
Judge Thomas, but It is expected to
this afternoon on "opposition to the
make only cursory use of it. Only a
Clarence Thomas nomination." But
relatively small number are expected
Mr. Conyers said the session would
to be called upon to lobby their sena-
be essentially "cerebral."
tors against Judge Thomas' confir-
The workshop will be held
mation.
against the background of a New
Participants in the "legislative
York Times/CBS Poll that found that
weekend." which is formally spon-
as of last week, while only 23 per-
sored by the non-profit Congression-
cent of the nation's blacks favored
al Black Caucus Fund, philanthropic
Judge Thomas' confirmation, only
arm of the House members' organi-
15 percent opposed It and a huge 63
zation. will devote most of four days
percent responded that they "can't
to forums and workshops. The focus,
say."
according to Representative Mike
The purpose of the workshop. Mr.
Espy. D-Miss., chairman of the
Conyers said, will be "to explain the
weekend program. will be on black
opposition of the CBC and the civil
Americans' "tragedies, dreams and
rights community" to the nomination
hopes."
of Judge Thomas.
THE NATIONS NEWSPAPER
USA
33
TODAY
PUBLISHED GANNETT
SEPTEMBER 12, 1991 13A
The Thomas view
of 'women's work'
If a man holds his sister up to ridicule,
how will he treat the rest of us?
"She gets mad when the mailman is late with her wel-
fare check, that's how dependent she is," said Clarence
Thomas of his sister, Emma Mae, in a 1980 speech that he
delivered to a group of black conservatives.
That speech marked his induction into the Hall of
Shame, the group of men who cross women's backs to gain
a place of prominence.
Republicans took note of Thomas after he skewered his
sister in public, but the rest of us should take note, too, of
the way this man fails to understand the way gender af-
fects life chances and opportunities.
One might argue that had Emma
Mae been a man she, too, would have
had the benefit of the Catholic educa-
tion that Myers Anderson provided
grandsons Clarence and Myers. Girl
that she was, she remained home
with her mother and started a career
of low-wage work.
Indeed, the record may well show
that Emma Mae is the firmer believ-
By Julianne Mal-
er in responsibility and self-help than
veaux, an economist
her male siblings. It was she, after
and lecturer and King
Features columnist.
all, who provided care for an aging
aunt, and it was she whose path away
from public assistance was paved by two part-time jobs.
Emma Mae Martin seems to be as hard a worker as her
brother, but women's work has always been less well re-
munerated than that of men. While Clarence Thomas
earns more than $110,000 as a federal judge, most hospital
aides like his sister earn less than $5 an hour.
Instead of holding a hard-working woman up for ridi-
cule, Thomas might try practicing some of the self-help he
preaches by offering some of the same assistance to his
sister that his grandfather once offered him.
Some say the Clarence Thomas story is one of hard
work and bootstrap pulling. From where I sit, though, this
is a story of the way gender shapes opportunities within
families. Judge Thomas cannot help the fact that, as the
male offspring of the grandfather he revered, he had ad-
vantages that his sister missed. But it is disappointing that
he seems insensitive to the gender basis of his advantages.
His supporters speak of his hard work, but did his moth-
er or sister work less hard? Or was their work merely less
well rewarded?
Economic reality dictates most women's workforce par-
ticipation, but the absence of family- and medical-leave
policies in our society depends on women's unpaid work.
Women are often pressed to drop out of the labor force
when a family member - a parent, older relative or child
- needs care. For providing that kind of support in her
family, Emma Mae Martin earned her brother's public
scorn. What can the rest of us women expect from Su-
preme Court Justice Clarence Thomas as issues of pay eq-
uity and family policy come before this court?
THE NATION NEWSPAPER
USA
34
TODAY
PUBLISHED GANNETT
SEPTEMBER 12, 1991
1A
Thomas silent
on abortion
By Tony Mauro
He said many of his contro-
USA TODAY
versial past writings were irrel-
evant, now that he is an ap-
Supreme Court nominee
peals court judge and a
Clarence Thomas refused
Supreme Court nominee:
again Wednesday to reveal his
"I advocated as an advocate,
views on abortion in a second
and now I will rule as a judge."
day of sometimes-hostile ques-
On another hot issue, Thom-
tioning by Senate Democrats.
as voiced concerns about pray-
The only glimpse he offered
er in public schools. Told by
of his abortion views came in
Sen. Paul Simon, D-III, of Jew-
an exchange with a frustrated
ish students who used to leave
Sen. Howard Metzenbaum, D-
classrooms when prayers were
Ohio, who asked him the abor-
recited, Thomas said, "Any pol-
tion question 11 different ways.
icy of exclusion should be con-
Metzenbaum asked how he
sidered inappropriate."
felt about back-alley abortions
Liberal opposition mounted:
that might proliferate if the
Planned Parenthood Fed-
procedure is outlawed.
eration of America announced
"As a kid we heard the
its opposition to Thomas. "The
hushed whispers about illegal
American people deserve to
abortions," Thomas said.
have an answer," said presi-
"If a woman is subjected to
dent Faye Wattleton.
the agony of an environment
Black religious and civil
like that, on a personal level,
rights groups - two represent-
certainly, I am very, very
ing 12 million black Baptists -
pained.
I would not want to
rallied at the Capitol to voice
see people subjected to torture
their anger at his testimony.
of that nature."
Defenders said Thomas
Thomas, shedding his case
shouldn't be held to account for
of first-day jitters, gave a
every musing of his public life.
thumbs-up sign and testified
"No one can pass that test,"
with more confidence, telling
said Sen. Alan Simpson, R-Wyo.
senators that to reveal his abor-
President Bush praised
tion views would compromise
Thomas: "He's doing a superb
his impartiality as a judge:
job, he knows exactly how to
"There is no room in judging
handle himself."
for personal predilections."
Today: Thomas is expected
to be grilled on his record as
chairman of the Equal Em-
ployment Opportunity Com-
mission and opposition to affir-
mative action.
35
THE NATION NEWSPAPER
USA
TODAY
PUBLISHED GANNETT
SEPTEMBER 12, 1991
13A
Focus shifts to record
at civil rights agency
By Judi Hasson
didn't sit on cases," says Debo-
USA TODAY
rah Graham, Thomas' commu-
nications director at EEOC.
While most attention at Clar-
"I can remember being over
ence Thomas' confirmation
there (at the EEOC) and help-
hearing has been focused on
ing look for members of a
"natural law" and abortion, his
class," she recalls. "It may
eight-year tenure as head of
have been a difference in ap-
the Equal Employment Oppor-
proach
but it had nothing to
tunity Commission is coming
do with commitment against
under similar scrutiny.
class actions."
On Wednesday, Thomas told
In fact, says Talkin, in 1983,
his Senate confirmation hear-
Thomas signed a $42.5 million
ing he's always been opposed
settlement with General Mo-
to discrimination and carried
tors, resolving hundreds of dis-
that philosophy to the civil
crimination claims. Among
rights agency he headed from
conditions: GM agreed to pro-
1982 to March 1990.
By Shawn Spence, USA TODAY
vide $10 million to universities
"I made it clear during my
METZENBAUM: Thomas
for minority students.
tenure as the Chairman of
'failed' to protect older workers
Willie King, the EEOC's fi-
EEOC that it had to be elimi-
nancial manager who once
nated, and I did everything
you will never eliminate dis-
worked with Martin Luther
within my power," he said.
crimination unless you attack it
King (she's no relation) also
To some Thomas-watchers,
on a large-scale class action."
defends Thomas' record.
the Supreme Court nominee
Backers counter that Thom-
"We were apprehensive be-
was a brilliant bureaucrat who
as' record is being distorted.
cause he was a black man ap-
cleaned up the EEOC. To oth-
Pamela Talkin, his chief-of-
pointed by Reagan to take over
ers, he was a civil rights ob-
staff at EEOC, estimates 2,200
EEOC. There was some skepti-
structionist.
age discrimination cases ex-
cism here," says King, who is
Critics say cases stalled un-
pired because of district office
black.
der Thomas, including as
problems, not Thomas.
"But one of the things that
many as 13,000 age discrimina-
She cites statistics showing
struck me about Thomas' re-
tion complaints, which piled up
the number of cases filed in-
spect for the civil rights move-
and then expired. Congress
creased from 51,000 in 1982 to
ment was that he called it 'the
had to pass a special law to
58,000 in 1988, but so did the
movement.' He would bring
make sure age discrimination
number of cases completed -
young proteges to my office
cases could be filed past a spe-
from 67,000 in 1982 to 70,000 in
and say, Tell them about the
cific deadline.
1988. "The backlog didn't in-
movement, tell them about
Said Sen. Howard Metzen-
crease. There wasn't anything
EEOC being born."
baum, D-Ohio, "During his ten-
horrendous about it," she says.
ure as chairman of EEOC,
"This is all political. He
Judge Thomas failed to fulfill
his duty to protect the legal
rights of older workers."
Other opponents say he
avoided class action cases de-
signed to fix discrimination
against groups of victims, in-
stead of individuals, and op-
posed affirmative action.
"He transformed the EEOC
into a nickel-and-dime claims
adjustment agency" says Nan
Aron of the Alliance for Jus-
tice, which opposes Thomas.
During his tenure, critics
say, the number of class action
cases dropped to 129 in 1989
from 218 in 1980.
"He decided you could elim-
inate discrimination in this
country on a case- by-case ba-
sis," says Nancy Kreiter, re-
search director of the Chicago-
based Women Employed
Institute. "From our viewpoint,
THE NATION NEWSPAPER
USA
36
TODAY
PUBLISHED GANNETT
SEPTEMBER 12, 1991
1A
Nominee hits
Why the frustration?
Thomas' strategy during the hear-
sion to what's become a familiar sce-
ings is one that works well for law-
nario. The fourth Supreme Court
yers arguing before the Supreme
confirmation in five years feels like
his stride
Court - but may not work before
summer stock theater gone stale: All
the senators. He drives home one
the players know their parts.
theme per session, and one point
In the front of the soaring Senate
only, resisting efforts by his inquisi-
Caucus Room are the senators, most
on Day 2
tors to derail him.
of them scripted by their staff, many
And he delivers his answers in a
of them strangely inept at asking fol-
deep, flat voice that has become an
low-up questions - a fact that Thom-
odd asset. Friends say he has a
as, veteran of more than 50 congres-
If Justice
By Tony Mauro
hearty laugh, but it has not been ap-
sional hearings, must surely know.
USA TODAY
parent. His unshakable monotone
In the middle of the room sit re-
Souter was a
envelops and sucks the air out of the
porters, playing their part as convey-
Sen. Patrick Leahy leaned
stealth
senators' rhetoric, a punching bag
ors of the substance, the atmospher-
forward and asked Supreme
that absorbs a left hook. No matter
ics and the spin of the proceedings
Court nominee Clarence
even though watching it on TV gives
nominee, I
what is thrown at him, the voice and
Thomas the direct question
the message are the same.
a better view. Senators and White
others had danced around.
am Bigfoot,'
"Does a fetus have a consti-
Wednesday's theme: Judges
House staffers chat with reporters
should be impartial arbiters, leaving
during breaks. Senators aides' whis-
tutional status as a person?"
quips Thomas
ideological baggage at home and
per, "Wasn't my guy great today?"
Thomas paused for a long
And then in the back and outside
time, pondering the answer
are the "spin doctors," the pro- and
that could hold the key to his
staying out of issues best left to Con-
anti-Thomas forces who give the me-
views on abortion. "I can't think of any cases that have held
gress or the president.
dia their take on Thomas' latest an-
that, senator," Thomas said finally. It was not the answer
"We are the least democratic
swers. Rikki Silberman, vice-chair-
the Vermont Democrat was looking for. It revealed nothing
branch," Thomas said at one point,
man of the Equal Employment
about Thomas's personal views.
referring to the fact that federal
Opportunity Commission, works the
But it was an answer. The tension in the air eased. Thom-
judges are appointed, not elected.
room in tireless support of Thomas.
as had survived another exchange, cleared another hurdle
"We have to restrain ourselves, so we
Thomas friend Singleton has staked
in his effort to calm the concerns of Senate Democrats who
don't become super-legislators."
out a Corinthian column near the
are struggling to decide whether he should be confirmed
Sen. Howard Metzenbaum, D-
press section as a place to lean -
for a seat on the nation's highest court.
Ohio, tried 11 times to pry an
and dispense Thomas lore.
anwswer out of Thomas on abortion.
For the Thomas opposition, the
Please see COVER STORY next page
An aide furiously handed Metzen-
National Abortion Rights Action
It was a dramatic moment
baum notes to help him fashion the
League churned out a near-hourly
Wednesday in the second day of
next question, but finally Metzen-
press release on Wednesday. On
baum gave up: "Let's move on."
Thomas' hearing before the Senate
Tuesday, Ralph Neas of the Leader-
But Metzenbaum also ticked off a
Judiciary Committee, a slightly bet-
ship Conference on Civil Rights burst
half-dozen areas in which Thomas'
ter day for Thomas than his first go-
out of the hearing room and told a
statements at the hearing appeared
round with senators on Tuesday.
reporter, "He's running from his re-
to contradict his past statements -
If the hearing were a play then the
cord." Within minutes, other anti-
first act introduced Thomas as the
setting the stage for a "confirmation
Thomas leaders were telling report-
conversion" strategy like the one
black protagonist with a poignant
ers, "He's running from his record."
that sank Robert Bork in 1987.
past, roughed up by the passionless
By month's end, the denouement
"Yesterday I thought we would fi-
panel of all-white senators.
will be known. And on the first Mon-
Thomas was halting and nervous
nally get some answers about your
day in October, the Supreme Court
the first day, awkwardly invoking his
views," said Metzenbaum. "Instead
begins its fall term - with or without
family whenever cornered. But on
of explaining your views, though, you
Clarence Thomas.
the second day he hit his stride, still
actually ran from them and dis-
avowed them."
mentioning his grandfather and his
past, but more in control.
Highlights of Metzenbaum's litany
of contradictions:
"To the extent that Justice Souter
In 1987 Thomas said, "Econom-
was a 'stealth nominee,' he
quipped, "I am Bigfoot."
ic rights are as protected as any oth-
Senators remained skeptical, how-
er rights in the Constitution." Yet on
ever, angered that Thomas side-
Tuesday Thomas said, "The Su-
stepped tough questions and seemed
preme Court cases that decided that
to be disavowing large chunks of his
economic rights have lesser protec-
controversial past statements and
tion were correctly decided."
Thomas labeled an anti-abor-
writings. While their frustration may
foreshadow a tragic final fall for
tion article as "a splendid example of
Thomas, there could still be a happy
applying natural law." On Tuesday,
ending, from his point of view.
he disavowed it.
"I don't do round-by-round assess-
In 1987, Thomas was part of a
ments," said Sen. Howell Heflin, D-
White House working group on the
Ala., one of the uncommitted sena-
family whose report criticized the
tors. "I'll wait till the fight's over."
court's pro-abortion rights rulings as
What is clear after two days is
"fatally flawed." At the hearing, he
Thomas has committed no blunders
said he'd never read the full report.
that make his defeat certain.
The unexpected trouble Thomas
His friends are predicting he'll be
finds himself in adds a new dimen-
confirmed. Hearings end next week.
"There's an ebb and flow to these
things, and you have to get into the
pattern and syncopation of it," said
Harry Singleton, a longtime friend of
Thomas who has been at the hear-
ings throughout. "Now he's getting
into it. I think he's doing very well."
Sen. Alan Simpson, R-Wyo., told
Thomas Wednesday, "You've got
'em. They re very frustrated by you."
THE NATION NEWSPAPER
USA
TODAY
PUBLISHED BY GANNETT
SEPTEMBER 12, 1991
2A
Lobbying not as heavy as in Bork case
By Judi Hasson
over what impact a special in-
tee. "Yes, if they really bring
USA TODAY
terest lobby has on their vote.
THOMAS HEARINGS
you something new and are
"I've gotten a good number
willing to share it, it makes a
The confirmation hearing
of letters, but not nearly what
Latest news, 1A
difference, but if it's a single is-
for Supreme Court nominee
Bork was," said Sen. Howell
Hearing excerpts, 13A
sue agenda, not as much.'
Clarence Thomas is testing
Heflin, D-Ala., an undecided
The EEOC flap, 13A
Sen. Arlen Specter, R-Pa.,
whether senators really listen
committee member who could
another undecided and crucial
when a lobbyist comes to call.
prove to be a crucial vote on
vote, says he listens to what lob-
The National Abortion
the nomination. Heflin, a high-
could affect future funding by
byists have to say. But "You
Rights Action League has sent
ly respected former judge,
special interests.
have to weigh a constituent's
600,000 hot pink and hot green
could sway other undecided
"They are getting bombard-
view in terms of the complex-
anti-Thomas postcards to
Southern Democrats.
ed by calls, letters and post-
ity of the issue."
members of the Senate.
Even the office of Sen. Jo-
cards
a huge grass-roots ef-
During the Bork battle, Spec-
In support of Thomas, the
seph Biden Jr., D-Del., the com-
fort," says NARAL's Kate
ter said he found himself work-
Christian Coalition, founded by
mittee chairman, hasn't re-
Michelman, a Thomas foe.
ing to convince constituents
TV evangelist Pat Robertson,
ceived the volume of calls it
Sen. Dennis DeConcini, D-
that Bork should be defeated.
began making 75,000 tele-
logged in past hearings.
Ariz., who's undecided, says
This time, abortion rights
phone calls urging its members
In the first day-and-a-half of
he's met with Thomas support-
supporters in his home state
to call and write their senators.
the Thomas hearing, his office
ers and opponents and plans to
are hoping he'll listen to them.
So far, it's no comparison to
counted 177 calls supporting
meet next week with a Hispan-
"We've taken on the chal-
the intensive campaign four
Thomas and 353 opposed.
ic group opposed to Thomas.
lenge to let him know we're out
years ago by liberal groups
But lobbyists vow they are
Can they have influence?
here," says Carol Silvestre,
against nominee Robert Bork,
working hard to put pressure
"It really depends on how
NARAL's Pittsburgh, Pa. orga-
who was defeated.
on the senators to scrutinize
they present it," says DeConci-
nizer, who is orchestrating lob-
And senators are divided
Thomas' record. How they vote
ni, a swing vote on the commit-
bying efforts around the state.
THE NATION NEWSPAPER
USA
TODAY
PUBLISHED BY GANNETT
Friends glued to TV
SEPTEMBER 12, 1991
2A
in Pin Point, Ga.
By Mark Mayfield
Thomas is bigger news than
USA TODAY
even the pennant drive of base-
S.C.
Enlarged area
ball's Atlanta Braves.
PIN POINT, Ga. - The
The hearing made front-
Ga.
sounds of the U.S. Senate echo
page headlines in the Savan-
Ala.
through the stately, moss-
nah Evening Press and
draped oak trees here.
drowned out nearly everything
N
In simple, wood-frame
Fla.
95
else in the black-owned Savan-
houses, cable TV has become
nah Tribune. The weekly, out
0
10
as essential as electricity while
Wednesday, carried five front-
South
the Judiciary Committee grills
page photos of Thomas and
Carolina
miles
native son Clarence Thomas
trumpeted: "The Tribune Fam-
live on C-SPAN.
ily Salutes Judge Thomas."
16
"It makes me sick the way
Thomas has been criticized
they're treating him. I don't
for forgetting his roots.
Savannah
like their tone," says Viola
"As one who participated in
204
Martin, 42, Thomas' cousin and
the civil rights struggle, I find
childhood playmate. "But he's
that his record is not one that
95
answering them very well.
I'm proud of," U.S. Rep. John
He's going to make a great Su-
Lewis, D-Ga., says.
Georgia
background where you help
country. On that issue alone, I'd
sister, Emma Mae Martin, sit-
preme Court justice. Just wait."
But in the town where his
Pin Point
people and you help yourself."
vote against him."
ting behind him at the hearing.
Support for Thomas - who
mother still returns for Sunday
That feeling was evoked
Clarence Thomas refused
And they cut him no slack
left Pin Point as a child but has
church services, Thomas is a
even at Savannah High.
during the hearings to express
when it came to the stern ques-
USA TODAY
a sister still living here - is as
point of pride. Folks say Thom-
An aspiring lawyer, 16-year-
his views on abortion, saying it
tions posed by the committee.
overwhelming as the humidity.
as, like Pin Point's other chil-
and watching Thomas on C-
old Antecia Thomas (no rela-
"would undermine my ability
"He'll have tough cases
Says one resident, Gail
dren, learned the value of hard
SPAN, the cable system of pub-
tion to the nominee), criticizes
to sit in an impartial way on a
when he gets to the Supreme
Smith, 33, "He's been dragged
work in the marshes where
lic affairs networks, she re-
the civil rights leaders who
case like that."
Court," says Tanisha Williams,
in the mud and slung around.
most worked at a now-closed
flects on the old values.
have condemned Thomas'
Students in an 11th-grade
15, "so he should get tough
To see him handle it so well is
crab processing plant.
"We were taught - and we
nomination. "They should back
constitutional law class dis-
questions now."
wonderful. He's still holding his
"We all grew up family,"
taught our children - man-
him 100%," she says.
carded books for a riveting les-
Adds Moriah McCrossin, 17:
head up. If it was me, I'd be
says Adelle Anderson, 58, who
ners and respect," Anderson
But she has questions of her
son, live and in color.
"If he's going to be a Supreme
down their throats."
raised seven children here and
says. "We try to walk the right
own, especially on abortion: "I
They watched Thomas, dig-
Court justice, it's important we
Here, in a humble town 250
sent five of them off to college.
road. That's what makes him
don't want the court making
nified and well-spoken, with his
have an opportunity to know
miles southeast of Atlanta,
Sitting in her living room
so good, his background. A
decisions for the women of this
mother, Leola Williams, and
about him."
39
THE NATION NEWSPAPER
USA
TODAY
PUBLISHED GANNETT
SEPTEMBER 12, 1991
2A
Outside the hearing room,
the battle of the sound bite
By Judi Hasson
the hearings, Thomas' oppo-
USA TODAY
nents had the microphones vir-
tually to themselves.
The White House fought
But Wednesday, both sides
back Wednesday in the battle
angled to get on-camera.
for media attention at Clarence
At a midday break, Sen.
Thomas' Supreme Court con-
John Danforth, R-Mo., raced to
firmation hearings.
the microphones and cameras
Spokeswoman Judy Smith
to defend Thomas' refusal to
was dispatched to play traffic
state his views on abortion, a
cop outside the confirmation
key issue at the hearings.
hearing room for reporters
Right behind him, Faye
By Tim Dillon, USA TODAY
seeking information.
Wattleton, president of
HATCH: 'Groups working real-
And a half dozen high-level
Planned Parenthood, stood
ly hard to get into the media.'
administration officials
ready to announce the organi-
showed up to offer their opin-
zation's opposition to Thomas.
House chief lobbyist, who's
ions about the nominee for doz-
Moments after she was fin-
guided Thomas' relations with
ens of microphones and TV
ished, Constance Newman, di-
Congress since he was nomi-
cameras.
rector of the Office of Person-
nated in July, said he thinks the
"Groups are working really
nel Management, pushed
hearings are helping Thomas
hard to get into the media,"
through the crowd of reporters
to win confirmation.
said Sen. Orrin Hatch, R-Utah.
to speak in support of Thomas.
"We are hoping that senators
On Tuesday, the first day of
Fred McClure, the White
are watching the tube," he said.
40
THE NATION'S NEWSPAPER
USA
TODAY
PUBLISHED BY GANNETT
SEPTEMBER 12, 1991
2A
Thomas rules
in 'Redskins
VS. Cowboys'
By Tony Mauro
USA TODAY
The most controversial con-
fession made by Supreme
Court nominee Clarence
Thomas Wednesday has noth-
ing to do with the law: He is a
Dallas Cowboys fan.
Thomas let the fact slip as he
was explaining to the Senate
Judiciary Committee how it is
possible for judges to hold
strong opinions privately, yet
still rule impartially.
"My Dallas Cowboys, for ex-
ample, played the Redskins on
Monday night, and I am totally
convinced that every referee
in (the game) is a Redskins
fan," said Thomas. "But none
would admit to it."
Sen. Alan Simpson, R-Wyo.,
applauded Thomas for his in-
dependence. "To have you in
this nest of Redskin fans, to be
a Dallas Cowboy fan certainly
discloses a degree of indepen-
dence which will serve you
very well on the court"
He later told reporters that
he was first drawn to the Cow-
boys after the franchise re-
cruited former Olympian and
world record sprinter Bob
Hayes as a split end in 1964.
4
The Washington Times
SEPTEMBER 12, 1991
G
The opponents of Judge Thomas
Clarence Thomas finishes testifying before the
sons to oppose Mr. Rehnquist - something about a
A
august panel of lawgivers who will decide
restrictive covenant in the deed to his house as well
whether to lift him to the nation's highest
some other unsupported charge about challenging vot-
court, it might be instructive to look at the
ers at polling stations - but in truth they opposed him
list of his opponents. Why, one might ask, do they
on grounds of political ideology.
oppose Judge Thomas? Well, for much the same reason
When Mr. Souter showed up for confirmation, the
they opposed Robert Bork, Antonin Scalia, William
Leadership Conference merely wanted the Judiciary
Rehnquist, David Souter and Anthony Kennedy -
Committee to "recall" him to explain some of his posi-
which they did. The nominees are conservative, the
tions more thoroughly, but the other groups - PAW,
opponents are liberal.
Alliance for Justice, NOW, NARAL, NAACP - came
The Congressional Quarterly ran a pretty compre-
down against him.
hensive list of those who oppose Judge Thomas: the
National Association for the Advancement of Colored
Move back to Mr. Scalia, and you find the usual
suspects: the Leadership Conference on Civil Rights,
People, the Leadership Conference on Civil Rights, the
Americans for Democratic Action and NOW.
AFL-CIO, the Alliance for Justice, People for the Amer-
ican Way, the National Abortion Rights Action League,
Anthony Kennedy was the one guy they couldn't do
the Congressional Black Caucus, American Federation
much with, although the Leadership Conference put a
of State, County and Municipal Employees and the
24-man team of lawyers into action checking his back-
American Federation of Teachers.
ground. Mr. Kennedy, you see, was the Reagan admin-
But take a look back through the files, and guess
istration's choice after the left got through with Mr.
who shows up in opposition to Mr. Bork? The same
Bork, and the Leadership Conference, NAACP and
collection of groups. And Mr. Rehnquist. when he was
NOW knew its friends on the Judiciary Committee
up for chief justice? The NAACP, the National Organi-
couldn't get away with murder twice. So Mr. Kennedy
zation for Women, the National Women's Political Cau-
slipped by.
cus, the Americans for Democratic Action, etc., etc.,
Fact is, these groups oppose Judge Thomas for one
etc. Admittedly, they came up with two ancillary rea-
reason, and it has nothing to do with his qualifications.
42
The Washington Times
SEPTEMBER 12, 1991
rom violence in the
established between individual
F
Crown Heights section
of the Bronx to heated
debates over a civil
Bridging the racial divide
whites and blacks. A ripple effect
could touch entire families, even
whole neighborhoods. The racial
rights bill in Congress,
animosity so prevalent today would
it is clear that the dis-
be markedly diminished.
tance between the races is widening.
legal gimmicks are necessary to
groups would contribute money,
The political benefits might also
The confirmation hearings for
overcome past and present discrimi-
If there are to be
time and expertise. The program's
be considerable. Conservatives
Judge Clarence Thomas present a
foundation would be a "domestic
could break the hold liberals have
nation.
rare opportunity for conservative
Some whites have countered that
many more
World Vision," patterned after World
had on the "black" vote for the last
Americans to take the initiative to
bridge the racial divide. Leadership
they are not responsible for what
Vision International, a humanitarian
half-century. This is not the highest
happened a century ago, and that
Clarence Thomases,
organization that assists poor chil-
motivation for involvement in such a
from this unlikely quarter could pro-
blacks want to reverse the discrimi-
it is up to those who
dren around the world through spon-
project, but if that's what it takes for
duce dynamic social and political
benefits unique in black-white rela-
nation process in their favor by de-
sors who donate money every
some conservatives to act, they can
nying whites jobs and promotions.
admire what he has
month.
grow from the bottom motivation
tions.
The twain shall never meet - un-
Ideally sponsors would be linked
up.
Judge Thomas represents values
less there is another way.
done to show the
to poor black American children in
In an address to the conservative
that most conservatives cherish:
The answer, I think, lies with
their city or region and would re-
Heritage Foundation in 1987, Cla-
hard working, self-sufficient, per-
black children who have, like Cla-
way for others to
main in close touch with their
rence Thomas said, "Conservatives
sonally accountable.
rence Thomas, demonstrated moti-
emulate his
"adopted" children by telephone, let-
must open the door and lay out the
If there are to be many more Cla-
vation but lack the means to make
ters and personal visits.
welcome mat if there is ever going
rence Thomases, it is up to those who
admire what he has done to show the
their dreams come true. With these
accomplishments.
Corporations could provide for
to be a chance of attracting black
young people, conservatives have an
selected young people short courses
Americans. There need be no ideo-
way for others to emulate his accom-
opportunity to produce a whole gen-
Clarence Thomas
on how businesses are run, eco-
logical concessions, just a major at-
plishments.
eration of Clarence Thomases if
nomic independence through self-
titudinal change. Conservatives
Across a wide chasm of misun-
they seize the moment now.
men, serving as mentors and role
help, cultural appreciation and aca-
must show that they care."
derstanding, whites and blacks have
created to find scholarship benefi-
hurled their ideological and political
A private national campaign
models. The personal relationship
ciaries and regulate the flow of
demic tutoring. Perhaps a child who
Closing the gap between black
mortars. Much of America's black
should be launched by conserva-
factor is critical to the success of
funds to protect the program's integ-
had been sponsored by a corporation
and white, between poor and non-
tives, apart from other programs, to
rity. Criteria would need to be well
or business would have an inside
poor in America is a job that can
leadership has practiced the politics
such a project because it offers en-
of grievance. They say whites owe
raise college scholarship money for
richment that is often denied to poor
track on a job after graduation and
begin with the initiative of conserva-
defined. Not only good students
black students in need of financial
would be helped, but anyone with the
a relationship with his or her mentor
tives reaching out to the children of
them because of slavery, and that
children, many of whom come from
assistance. In addition. conserva-
broken families and suffer other so-
desire and potential to succeed
that would serve both well.
poor blacks to help them become
quotas, affirmative action and other
tives should become personally in-
cial and environmental hardships.
The personal, cultural and politi-
self-sufficient. The potential to
might qualify.
volved in the lives of these young
A foundation with specific by-
cal benefits of such a program are
transform black America is great.
To fund such a program, corpora-
Cal Thomas is a nationally syndi-
people, particularly young black
laws and tight controls should be
tions and conservative political
potentially enormous. Personal rela-
The potential to transform white
cated columnist.
tionships on a new level would be
America may be even greater.
The Washington Times
43
SEPTEMBER 12, 1991
AI
Thomas holds firm on 'impartiality'
THOMAS
ceptive
and to be more aggres-
Senators
sive" on civil rights enforcement.
Mr. Metzenbaum said he was not
From page Al
satisfied with Judge Thomas' testi-
mony that his earlier writings on
press on
U.S. Court of Appeals for the District
natural law were mere philosophical
of Columbia.
musings that he would not apply on
"Have you made any decision in
the bench and charged the nominee
abortion
your mind whether you feel Roe VS.
with tailoring his answers to ensure
Wade was properly decided
with-
confirmation.
out stating what that decision is?"
"We don't know if the Judge
Mr. Leahy asked.
By Dawn Ceol
Thomas who has been speaking and
THE WASHINGTON TIMES
"I have not made, Senator, a de-
writing throughout his adult life is
cision one way or the other with re-
the same man up for confirmation
Supreme Court nominee Clarence
spect to that important decision," the
before us today, and I must tell you it
Thomas yesterday deflected re-
judge responded.
gives me a great deal of concern,"
peated attempts by Senate liberals to
Sen. Dennis DeConcini, an Ari-
Mr. Metzenbaum said.
force him to reveal his views on abor-
zona Democrat and a swing vote in
Sen. Alan Simpson, Wyoming Re-
tion, insisting that he had "not made
the closely contested nomination
publican, quoted passages from
a decision" on the issue and would
battles, said Judge Thomas "han-
Judge Thomas' 1990 hearings for a
keep an open mind.
dled the privacy questions very
seat on the federal appeals court in
"As a kid we heard the hushed
well."
which the nominee said: "Recogniz-
whispers about illegal abortions,
"I don't see how you could ask him
ing that natural rights is a philosoph-
and individuals performing them in
to do anything more," Mr. DeConcini
ical, historical context of the Consti-
less-than-safe environments." Judge
said.
tution is not to say that I have
Thomas told the Senate Judiciary
Sen. John Danforth, a Missouri
abandoned the methodology of con-
Committee. "If a woman had been
Republican and Judge Thomas'
stitutional interpretation used by
subjected to the agony of an environ-
strongest Senate supporter, chas-
the Supreme Court."
ment like that, on a personal level
tised his colleagues for a "litmus
Mr. Simpson dismissed charges of
certainly I am very, very pained by
test" approach.
a "confirmation conversion" on the
that."
"It really is wrong to say that we
But divulging an opinion on abor-
are only going to confirm people
tion "would undermine my ability to
who are going to vote our way on any
sit in an impartial way on an impor-
issue, whether it's Roe V. Wade or
Judge Thomas said
tant case like that," the nominee said.
anything else?" Mr. Danforth said.
he had discussed
Judge Thomas' second day of tes-
"Continually, people bark up the
timony covered a variety of topics he
same tree: Will Clarence Thomas
abortion "only in the
had treated in numerous speeches
prejudge the abortion issue? He says
during his career, including affirm-
no, he will not," he said. "Does he
most general sense."
ative action and judicial restraint.
have a view of abortion that prede-
Pressed by Sen. Paul Simon, Il-
termines how he would vote on the
linois Democrat, for his views on
Supreme Court? No, he does not.
natural law issue as "a bit of an over-
school prayer, Judge Thomas said he
Won't he please tell us how he would
reaction
an act of desperation, if
was "sensitive to our desire in this
prejudge abortion? No, he won't.
you will."
country to keep government and re-
"And no matter how many times
Several times during the day,
ligion separated."
the same question comes up, I think
Judge Thomas repeated his belief
But the testiest exchanges in-
his answer is appropriate."
that judges should divorce them-
volved the abortion question and
Mr. Metzenbaum said that he
selves from opinions on contentious
Judge Thomas' refusal to state his
would not continue to press Judge
issues.
position.
Thomas on the abortion question but
He assured Sen. Arlen Specter,
Sen. Howard Metzenbaum, Ohio
that his reluctance to reveal his posi-
Pennsylvania Republican, that al-
Democrat, used his half-hour of
tion "certainly makes it more dif-
though he had criticized race-
questioning to press the black con-
ficult to vote for him."
conscious policies while EEOC
servative nominee at least 10 times
Sen. Herb Kohl, Wisconsin Demo-
chairman, he had put those opinions
for his views on Roe vs. Wade, the
crat, said he was bothered by Judge
aside in his role as a judge. In one
1973 decision that recognized a con-
Thomas' testimony: "I'm concerned
exchange about the correct role of
stitutional right to abortion.
about his candor, his willingness to
judges, the nominee used football to
"Frankly, I'm terrified that if we
be forthcoming."
illustrate his contention that judges
turn the clock back on legal abortion
Mr. Metzenbaum, who had voted
must be impartial in all things.
services, women will once again be
to confirm Justice David Souter last
"My Dallas Cowboys, for exam-
forced to resort to brutal and illegal
year despite his refusal to answer
ple, played the Redskins this Mon-
abortions, the kinds of abortions
questions on abortion, denied that
day night. And I am totally con-
where coat hangers substitute for
liberals were applying a different
vinced that every referee in those
surgical instruments," Mr. Metzen-
standard to Judge Thomas, former
games is a Redskins fan, but none
baum said.
chairman of the Equal Employment
would admit to it," the nominee said.
"I fear that you, like other nomi-
Opportunity Commission.
"I think that in something as sim-
nees before the committee, could
"Souter had not written or made
ple as that, even though we have
assure us that you support a fun-
as many speeches as has Judge
strong views about who should win
damental right to privacy but could
Thomas," he said. "Judge Thomas
we'd want to feel that the referees
also decline to find that a woman's
has spoken and talked about the sub-
- and judges are, to a large extent,
right to choose is protected by the
ject of a woman's right to choose,
referees - are fair and impartial,
Constitution."
although not in those quite specific
even when we don't agree with the
Sen. Patrick Leahy, Vermont
words. But he certainly has much
calls."
Democrat, continued that theme,
more of a record than did have
Noting the judge's admission that
quizzing Judge Thomas about
Souter."
he had been a Cowboys fan for 25
whether he had discussed the Roe
Liberals had used as proof of
years, Mr. Simpson said: "I think
decision, or even thought about it, in
Judge Thomas' pro-life views on
that will create more concern than
the 18 years since his graduation
abortion his praise of an article by
anything thus far. To have you in this
from Yale law school.
conservative businessman Lewis
nest of Redskin fans to be a Dallas
Judge Thomas, 43, said he had dis-
Lehrman attacking the Roe decision
Cowboy fan certainly discloses a de-
cussed abortion "only in the most
as "a splendid example of the ap-
gree of independence which will
general sense, that other individuals
plication of natural law."
serve you very well on the court."
express concerns one way or the
Discussions on "natural law," a
The full Senate will vote on confir-
other and you listen and you try to be
philosophy that holds certain rights
mation after the committee has
thoughtful."
to be above governmental interfer-
made its recommendation on Pres-
"If you're asking me whether or
ence, also played a leading role in
ident Bush's choice to succeed retir-
not I've ever debated the contents of
yesterday's session.
ing Justice Thurgood Marshall, the
it, the answer to that is no, Senator,"
"At no time did I adopt or endorse
only black member in the high
said Judge Thomas, a member of the
the substance of the [Lehrman] arti-
court's history.
cle," Judge Thomas said, adding that
"He's doing a superb job: he
see THOMAS, page A7
he had praised it during a speech at
knows exactly how to handle himself
the Heritage Foundation to illustrate
and that's what's coming through,"
to conservatives that natural law
Mr. Bush said of Judge Thomas' per-
was a good reason "to be more re-
formance.
J
The Washington Times
SEPTEMBER 12, 1991
A7
Panel tries to catch Thomas shifting on issues
By Ronald A. Taylor
Sen. Howell Heflin, Alabama
"You've got 'em," Mr. Simpson told
Lehrman before praising it as a
a single legal scholar in America,
one as controversial as Roe V. Wade."
THE WASHINGTON TIMES
Democrat, said Judge Thomas gives
the nominee. "They're very frus-
"splendid example" of the use of nat-
and I hope you meet that test or you
There were occasional points won
the "appearance of confirmation
trated by you."
ural law.
shouldn't be on the Supreme Court,"
by the questioners.
Supreme Court nominee Clarence
conversion," using a phrase coined
Some of the most pointed ques-
"Sometime between now and the
Mr. Biden said.
Thomas faced intense queries yes-
by Sen. Patrick Leahy, Vermont
tions came from Sen. Howard Met-
next go-around, could you please
Sen. Arlen Specter, Pennsylvania
terday as members of the Senate Ju-
Democrat, during 1987 hearings for
zenbaum, Ohio Democrat, and Mr.
find the time to read it, and if you get
Mr. Leahy expressed surprise at
Republican, cited two decades of
diciary Committee probed to see
Judge Robert Bork.
Leahy on the abortion and natural-
crammed with too many things be-
Judge Thomas' assertion that he had
foot-dragging by a union to avoid a
whether President Bush nominated
So far, Judge Thomas appears "to
law issues.
not discussed the celebrated Roe vs.
tween now and then when I get my
court order to end racial discrimina-
an inconsistent, possibly opportunis-
change his mind or give answers that
"Judge, does a fetus have a consti-
next turnaround, I'll just stop and
Wade abortion ruling.
tion. Citing the nominee's stated
tic replacement for Justice Thur-
won't hurt him in regards to the con-
tutional status as a person?" Mr.
give you time to read it right then,"
"I have never heard anybody who
aversion to race-based hiring rem-
good Marshall.
firmation," Mr. Heflin said.
Leahy asked.
Mr. Leahy said.
does know him here that they have
edics, he asked the judge to explain
The black conservative had to
"I'm concerned about his candor,
"I can't think of any cases that
"Do not count me as one of your
heard him state a position on Roe V.
why the Equal Employment Oppor-
handle pointed questions about ap-
his willingness to be forthcoming,"
have held that," Judge Thomas re-
detractors because I ask you tough
Wade, and I think he's very truthful
tunity Commission argued against
parent inconsistencies in his current
said Sen. Herb Kohl, Wisconsin
sponded.
questions," said committee Chair-
in saying that," said Sen. John C.
penalizing the union for contempt of
positions and previously expressed
Democrat.
During questioning by Mr. Leahy
man Joseph Biden Jr., Delaware
Danforth, Missouri Republican and
court.
attitudes about privacy, abortion
Sen. Alan Simpson, Wyoming Re-
on whether Judge Thomas em-
Democrat. He noted that definitions
the judge's chief sponsor. "I think
rights, natural law, anti-discrim-
"It was a point well taken," Judge
publican, dismissed such remarks
braces the idea of natural law as a
of the concept of natural law are at
that there are, believe it or not, a lot
Thomas said of the senator's obser-
ination remedies and Congress' abil-
as "an act of desperation" by liberals
basis for judicial rulings, Judge
best elusive.
of people in the country who don't go
vation. "There should be
the
ity to spell out its legislative inten-
worried that Judge Thomas will be
Thomas said he had only skimmed
Defining and applying that idea
around spending their time talking
same kind of fines that are available
tions.
confirmed.
an article by conservative Lewis
"may confound the people
but not
about Supreme Court cases, even
in antitrust litigation."
45
The Washington Times
SEPTEMBER 12, 1991
Nominee wins fans
beyond the Beltway
His customers have had little to
By Joyce Price
say about Judge Thomas, he said.
THE WASHINGTON TIMES
The nomination has "not been a par-
Clarence Thomas may not be
ticularly big issue here." Mr. Buist
drawing Middle America to its TV
said. "It hasn't caught hold or
sets like Norman Schwarzkopf - or
grabbed the conscience of the pop-
even Robert Bork - but the conser-
ulace to any extent at all."
vative black Supreme Court nomi-
He added: "But there was some
nee seems to have made a good im-
discussion about those ads the con-
pression on many outside the
servatives ran, including the one on
Beltway who have been following his
[Sen. Edward Kennedy |Massachu-
confirmation hearings,
setts Democrat]. I think the ad gave
"I think he has done extremely
people a more negative impression
well, and I'm an ultraliberal," Jim
of him, along with those events" in
Buist, owner of Buist's Barbershop
Florida.
in Kalamazoo, Mich., said in a tele-
Interest in the Thomas hearings
phone interview yesterday.
seems to be a little keener in Pine
Judge Thomas also won good rat-
Bluff, a city whose population is 55
ings from viewers in Pin Point, Ga.,
percent black. Clyde N. Toney, a
his hometown, mixed reviews in
Pine Bluff, Ark., and Peoria, Ill., and
black businessman who owns a fur-
negatives in Detroit for his conser-
niture store in Pine Bluff, said he's
vative record. Elsewhere, a random
been watching the hearings on a TV
telephone survey found, the Senate
in his store.
Judiciary Committee hearings were
"Quite a few customers have
making little headway against the
paused and watched the hearings
soaps, talk shows and other daytime
and made comments," he said. "The
television standards.
general feeling is that he's done
Keith Winn, an employee at Mac's
fairly well. All of us could relate to
Bar and Grill in Oakland, Calif.,
what he was saying with regard to
laughed when asked. if any of the
his background and experiences."
televisions in the place were tuned to
But Mr. Toney said he's unhappy
the hearings. "Washington, D.C., is
Judge Thomas has not answered
the only place I can think of where
questions about abortion. "I would
they'd have the Clarence Thomas
hope he'd give his views on abortion,
hearings on in a bar," he said.
rather than evade the issue," he said.
"My customers really aren't talk-
Public opinion on the nomination
ing about the Clarence Thomas
in Pine Bluff is mixed, he said.
"Some feel he'll be confirmed. Oth-
see REACTION, page A7
ers feel he shouldn't be confirmed.
It's about 50-50."
hearings," said John Pierorazio,
owner of Uncle Eddie's restaurant in
Essex, a blue-collar community east
In Peoria, customers at George's
of Baltimore. "The Supreme Court
Shoeshine and Hattery downtown
really is too esoteric for most people,
also are split down the middle on the
I think."
nomination. "It was much worse
Mr. Pierorazio said he could not
during the Bork hearings," said
watch the hearings even if he wanted
George Manias, who has been shin-
to, because his establishment does
ing shoes at that spot for 45 years.
not have cable TV. But he said he's
"Everybody was against Bork."
seen some news clips of Judge
Customers at Steve's Barbershop,
Thomas at the hearings and com-
across the street from the Peoria
mented, "Overall, I think he's avoid-
City Hall, have had little to say about
ing the issues pretty well."
the Thomas hearings, owner Steve
Mr. Buist, who has been catching
Bainter said. Those who have com-
the hearings between customers in
mented, he said, "feel he's going to
his barbershop, had critical words
be confirmed and that these hear-
for Judge Thomas' questioners.
ings are just a formality."
"I was sorry to hear [Sen. How-
One community that has been
ard] Metzenbaum [Ohio Democrat]
paying understandably close atten-
grinding him today on his philosoph-
tion to the hearings is Pin Point, a
ical and ideological positions," he
town of about 175 residents just
said. "They have to look at his quali-
south of Savannah.
fications but are way out in left
field [in their approach).'
46
THE WALL STREET JOURNAL.
SEPTEMBER 12, 1991
A18
Biden Meets Epstein
The main lesson SO far of the hear-
philosophy to protect these rights.
ings for Clarence Thomas is that the
Mr. Biden unintentionally did the
World's Greatest Deliberative Body
country a service by waving around a
knows no limits when it comes to hy-
copy of University of Chicago Law
pocrisy. The stubborn fact of Judge
Prof. Richard Epstein's "Takings"
Thomas's impressive qualifications
(Harvard University Press, 1985). He
for the job forces his opponents to say
asked incredulously if Judge Thomas
some of the most amazing things.
believed in this economic-liberty talk.
There's the hypocrisy of Howard
"There's a whole new school of
Metzenbaum's litmus test that Judge
thought," Mr. Biden intoned, "that up
Thomas must agree to vote to uphold
until about five years ago only spoke
Roe v. Wade after accusing President
to one another that is now receiving
Bush of having the opposite litmus.
wider credence and credibility."
But probably the most hilarious hy-
Well, the Founding Fathers memo-
pocrisy is this running-joke discussion
rialized economic rights in the Consti-
about "natural law,' a phrase that no
tution itself. The Fifth Amendment
Senator can define.
says the government can take private
The unseriousness of the natural-
property only for a "public purpose"
law issue is clear by remembering the
and only if "just compensation" is
accolades liberals gave Justices Bren-
paid. The Contracts Clause bars any
nan and Marshall when they advanced
"law impairing the obligation of con-
their common political agenda by
tracts." The Fifth and Fourteenth
ditching original intent and instead in-
Amendments protect due process for
voking "the constitutional ideal of hu-
life, liberty and property. Judge
man dignity" to find new rights hiding
Thomas reminded Mr. Biden, "there
in the penumbras and shadows.
is a Takings Clause in the Constitution
Maybe liberals worry that a conserva-
and there's also a reference to prop-
tive nominee could cite natural law to
erty in our Constitution."
make opposing arguments from the
These rights, which are explicit
same playbook, but they also know
and require no invocation of natural
that Judge Thomas was selected for
rights or penumbras, have gone
his adherence to judicial restraint.
largely unprotected since FDR told
When Senator Biden asked Judge
the Justices he'd pack their court if
Thomas if he would use ambiguous
they interfered with the New Deal.
natural law instead of applying the
The failure to protect the property
written Constitution, Judge Thomas
right to the product of one's work, in-
gave the answer liberals supposedly
cidentally, made Jim Crow possible.
wanted to hear. He said he would not,
As Judge Thomas said, segregation
that his interest in natural law was
laws "did not allow my grandfather to
limited to political arguments he
enjoy the fruits of his labor."
could use when he ran the EEOC to
broaden the inalienable rights of mi-
By now, the failure to enforce the
norities. Does Mr. Biden wish Judge
Takings Clause is an epidemic. Ex-
Thomas still counted as only three-
propriation by rent control and abu-
fifths of an American?
sive zoning is common. Environmen-
Whatever the reason, Mr. Biden
tal regulations in particular routinely
has now decided he doesn't like Judge
amount to takings. Wetlands rules
Thomas's answer and chooses not to
turn valuable property into land that
believe it. This is despite the fact that
can't be developed. Timber compa-
not one of Judge Thomas's opinions
nies unlucky enough to own trees that
for the federal appeals court in Wash-
attract Spotted Owls have had their
ington mentions natural law. So ex-
business outlawed. Congress can pass
pect more newfound high dudgeon
these regulations, but the Takings
about the dangers of judicial activ-
Clause was supposed to require com-
ism.
pensation. This is about more than
This criticism of what Judge
fairness. The Founders also insisted
Thomas does not believe would be be-
on the Takings Clause as a limit on
nign nonsense except for a danger
the amount of government regulation
that should worry people who are
by making sure taxpayers would bear
more serious than the Members of the
the costs of regulations that hurt prop-
Judiciary Committee. We have in
erty values.
mind Mr. Biden's attempt to ostracize
Mr. Biden is right; there is a
proponents of economic liberties.
"whole new school of thought" on the
He asked Judge Thomas whether
proper relationship between the state
he thought there was a natural right
and private property. We know that
to property and contracts. John Locke
Mr. Biden possesses a copy of Rich-
and John Stuart Mill would say yes,
ard Epstein's "Takings." When he's
but there is no reason for a judge in
done waving it, we recommend that
this country to reach for natural-law
he open it and read it.
THE WALL STREET JOURNAL
47
SEPTEMBER 12, 1991
A20
Democrats Accuse Thomas of Changing
Positions to Win Confirmation as Justice
By PAUL M. BARRETT
cies to help move large numbers of blacks
Staff Reporter of THE WALL STREET JOURNAL
into the work force. The nominee re-
WASHINGTON - Some Senate Demo-
sponded that such policies lead to reverse
crats began to focus on Clarence Thomas's
discrimination against whites and other ra-
integrity. accusing the Supreme Court
cial groups and also "undermine the dig-
nominee of trying to get confirmed by re-
nity" of those who are helped.
pudiating his past positions on such topics
Judge Thomas instead stressed that in-
as the right to privacy and natural law.
dividual cases of discrimination deserved
Judge Thomas. in his second day of tes-
government attention and that employers
timony before the Senate Judiciary Com-
found guilty of purposeful bias should face
mittee. insisted he hadn't changed his
tougher punishment, including potential
views and also resisted Democrats' contin-
jail terms and multimillion-dollar criminal
ued efforts to elicit his opinion on Roe VS.
fines.
Wade. the landmark 1973 Supreme Court
In an earlier exchange with Sen. DeCon-
decision that recognized a constitutional
cini, the nominee said somewhat enigmati-
right to abortion.
cally that for some types of discrimination,
Under sharp questioning by Sen. Pat-
he might endorse a "more exacting" level
rick Leahy (D., Vt. 1. the nominee said he
of analysis than is now employed by the
has never formed an opinion of any kind
Supreme Court. Judge Thomas didn't elab-
about Roe VS. Wade and couldn't even re-
orate on when he would consider such a
call discussing the controversial case in
"ratcheting up" of the high court's dis-
the 18 years since he graduated from law
crimination test, making it easier to prove
school. Judge Thomas. who sits on the fed-
illegal bias.
eral appeals court here. reiterated that. in
Responding to questions from Sen. Paul
any case, he wouldn't comment directly on
Simon (D., III. ). Judge Thomas made his
the abortion-rights issue because it would
first comments on another issue that
"undermine" his impartiality as a judge.
comes before the Supreme Court fre-
He did say that. if confirmed, he would
quently, prayer in school. The nominee
keep an open mind on abortion cases and
said that a policy that resulted in a stu-
would rely on precedent and medical sci-
dent's being excluded from any activity
ence in deciding them.
because of religion "should be considered
Continued Questioning on Abortion
inappropriate."
The issue Democrats pursued with en-
Expressing skepticism. Sen. Leahy indi-
thusiasm was whether Judge Thomas has
cated that he would continue to press the
been conveniently disavowing past state-
nominee on the issue. Republicans, mean-
while. charged that Judge Thomas was be-
ments and positions to improve his
chances of being confirmed. Sen. Howell
ing held to a tougher standard than Justice
Heflin (D., Ala. ) noted "an appearance of
David Souter. who was easily confirmed
confirmation conversion," a clear refer-
last year despite his refusal to discuss Roe
ence to the 1987 defeat Robert Bork. a Su-
VS. Wade.
Overall. Judge Thomas maintained a
preme Court nominee of former President
calm demeanor under Democratic fire,
Reagan. Some Democrats charged four
and at least one influential committee
years ago that Mr. Bork had undergone
such a conversion when he tried to temper
member, Sen. Dennis DeConcini (D.
some of his controversial views, and the
Ariz. ). said he was "pleased" with his tes-
accusation helped doom his nomination.
timony on some issues. Committee Chair-
Sen. Heflin, who provided a key vote
man Joseph Biden of Delaware told the
nominee. "Do not count me as one of your
against Mr. Bork, said a confirmation con-
version raised the issue of a nominee's "in-
detractors because I ask you tough ques-
tegrity and temperament" to sit on the Su-
tions."
Even the nominee's staunchest liberal
preme Court.
opponents conceded that he went into the
Focus on Natural Law
hearings a strong favorite to be confirmed
Specifically. the Alabama lawmaker
and probably could be defeated only if he
questioned whether Judge Thomas had
blundered badly at the witness table. So
backed off his earlier endorsements of nat-
far. at least. he hasn't.
ural law. This somewhat esoteric legal phi-
Responding to questions on abortion. for
losophy. which has become a central issue
example. he acknowledged the potential
in the Thomas hearings. assumes the exis-
human toll of making the procedure ille-
tence of certain fundamental rights, such
gal. as many of his conservative allies ad-
as liberty and equality, regardless of
vocate. He recalled that as a child he had
whether those rights are included in writ-
heard "hushed whispers" about illegal
ten laws.
abortions performed under unsafe condi-
In response to questions from several
tions. "On a personal level." he added, "I
Democrats. Judge Thomas has tried to
wouldn't want to see people subjected to
soften and clarify some of his natural-law
torture of that nature."
beliefs. For example. he has distanced
Aside from his own performance. Judge
himself from natural-law thinkers who
Thomas has benefited from the difficult po-
would declare abortion unconstitutional or
sition in which his nomination has put lib-
assert property rights as a means of roll-
erals. Among his most controversial posi-
ing back government regulation of busi-
tions is the steadfast opposition to most
ness. But the nominee insisted yesterday
forms of racial preferences. which he
that he wasn't abandoning natural law al-
turned into federal policy as chairman of
together: instead. he stressed that he
the Equal Employment Opportunity Com-
views it as more of a political theory than
mission during the 1980s. But Democrats
a basis for deciding constitutional cases.
have hesitated to raise race relations. apr
It wasn't clear whether this answer
parently because they don't relish criticiz-
completely satisfied Sen. Heflin. But the
ing a black man who overcame segrega-
lawmaker eventually qualified his attack
tion and poverty and bases his self-help
by acknowledging that Judge Thomas's
philosophy on those compelling experi-
past pronouncements on natural law were
ences.
"subject to interpretation." Sen. Heflin
It was a Republican. Arlen Specter of
also said he hadn't decided how he would
Pennsylvania. who persistently questioned
vote on the nomination.
Judge Thomas yesterday on why he
-Raquel Santiago contributed to this
doesn't favor broad .:ffirmative-actionpoi
article.
48
The New York Times
SEPTEMBER 12, 1991
A24
Natural Law, Then and Now
Clarence Thomas, the Supreme Court nominee,
overruling Roe V. Wade, the landmark abortion
has not so far been credible in his Senate testimony
decision, and they surely open him to broad com-
on a point of considerable concern. Judge Thomas is
mittee questioning.
trying to minimize speeches in which he extolled
In one 1987 speech to an audience hostile to Roe,
natural law, sometimes described as a "higher
he praised an article by Lewis Lehrman that called
law" than the Constitution.
the decision an illegitimate violation of a fetus's
He characterizes those speeches now merely as
right to life under the author's view of natural law.
musings in political theory that had nothing to do
Mr. Thomas called the article "a splendid example
with his view of how a judge should decide hard
of applying natural law."
constitutional cases.
He now tells the Senate that he never endorsed
Examination of those speeches, whose views
the article and in fact disagrees with it. Natural law,
are likely to have attracted him to the Bush Admin-
he maintains, is only a political theory and he
istration, shows this explanation to be inadequate.
rejects it as a judicial tool to help decide constitu-
Unless the Senate Judiciary Committee can elicit
tional cases.
better answers, it may be forced to conclude that he
Yet he told a law school audience in 1988:
harbors a view of judging that is wide of what most
"Without recourse to higher law, we abandon our
lawyers and citizens regard as the mainstream of
best defense of a Court that is active in defending
American law.
the Constitution but judicious in its restraint and
moderation. Higher law is the only alternative to the
willfulness of both runamok majorities and runa-
Natural law, a concept of inherent rights that
mok judges."
animated the Revolution, still has respected adher-
In the same year he praised a strong, lone
ents who argue for a moral basis for American law.
judicial dissent by Justice Antonin Scalia from the
But the concept is nevertheless vague and subjec-
Supreme Court's upholding of the statute establish-
tive. It has been used both to defend and oppose
ing Federal independent counsels. He said Justice
slavery, sex discrimination and other evils now
Scalia's opinion - which was delivered from the
banned by positively enacted constitutional amend-
bench and not in a political science seminar -
ments and statutes.
"indicates how again we might relate natural rights
Judge Thomas's speeches on the subject have
to democratic self-government and thus protect a
raised pointed questions about which brand of high-
regime of individual rights."
er law he favors. Now, in his answers to the Senate
Those remarks and a host of others were about
Judiciary Committee, he seeks to distance himself
judicial decision-making, not political science or
from those speeches. He disavows reliance on any-
political philosophy. Judge Thomas's answers are
thing but the Constitution and laws, but several
so far unpersuasive.
senators rightly complain that his new disclaimers
What gives skeptical senators, mostly Demo-
fall short.
crats, even stronger grounds for hesitation is the
The nominee, who has sat for only a matter of
belief that President Bushknows, if only from these
months on the United States Court of Appeals in
speeches, that his nominee satisfies the Republican
Washington D.C., refuses to discuss issues of abor-
platform's demand for pro-life judges.
tion, citing the need to remain publicly impartial.
Inspired by a natural or higher law or not,
It's generally important to guard against public
Judge Thomas has the burden of explaining better
prejudgment, and the Senate usually honors a nomi-
when his expressed philosophy raises serious ques-
nee's reticence.
tions. The doubting senators are right to persist, and
But Judge Thomas's speeches about natural
they are entitled to hold his non-answers against
law and abortion strongly suggest a predilection for
him.
49
The New York Times
SEPTEMBER 12. 1991
A1
THOMAS UNDERGOES
our job very difficult," he said.
Over the next half hour, Mr. Metzen-
baum asked Judge Thomas 13 times,
and in as many ways, to indicate
TOUGH QUESTIONING
whether he believed there was any
constitutional right of privacy that
would give a woman a right to abortion.
ON PAST REMARKS
Each time Judge Thomas responded it
would be inappropriate to answer be-
cause it would compromise his ability
to sit on a Supreme Court that is cer-
tain to consider the issue.
OPENNESS IS CHALLENGED
"I don't have an ideology to take to
the Court to do all sorts of things,"
Judge Thomas said. "I'm there to take
Committee Democrats Express
the cases that come before me and to
do the fairest, most open-minded, de-
Concern That the Nominee
cent job I can as a judge."
President Bush, who nominated
Judge Thomas to replace Thurgood
is Tailoring Testimony
Marshall on the Supreme Court, said
he chose the 43-year-old jurist without
regard to his views on Roe V. Wade, the
By NEIL A. LEWIS
1973 ruling that established a constitu-
Special to The New York Times
tional right to abortion.
WASHINGTON, Sept. 11 - Judge
Judge Thomas today repeated that
Clarence Thomas faced stiff question-
he believed the Constitution provides
for some right of privacy but would not
ing today in his second day of testimo-
say whether that meant a constitution-
ny before the Senate Judiciary Com-
al right to an abortion because that
mittee, with some Democratic Sena-
would "leave the impression that I've
tors questioning whether he was tailor-
prejudged the case."
ing his comments and repudiating his
All he would say about his personal
earlier writings and speeches to win a
views about abortion in response to a
seat on the Supreme Court.
question was that he was "very, very
Senator Howell Heflin, an Alabama
pained" by the thought of back-alley
Democrat whose support to Judge
abortions which resulted in the death
Thomas's nomination is crucial, told
and disfigurement of women. "I would-
the nominee he was concerned that
n't want to see people subjected to that
kind of torture," he said but again
"there appears to be a conflict between
declined to say if that influenced his
what you've said in the past and what
constitutional view of abortion.
you've told us here."
Several of the committee's Republi-
He said this gave the appearance
can members were clearly uncomfort-
that Judge Thomas was undergoing a
able with the aggressive questioning of
"confirmation conversion" and said
Judge Thomas. Senator Strom Thur-
such an approach could raise questions
mond of South Carolina, the commit-
about the nominee's integrity and tem-
tee's ranking Republican, broke into
perament.
Mr. Metzenbaum's questioning to de-
fend Judge Thomas against a com-
Speeches and Writings
plaint that he was willing to answer
At issue are Judge Thomas's state-
questions on other cases that might
ments on Tuesday before the commit-
come before the Court but not abortion
because that would harm his chances
tee, in which he sought to dismiss the
of confirmation.
significance of a series of speeches and
Despite the tough questions and the
writings over the years. Opponents
annoyance Judge Thomas's answers
have argued that the writings and
produced among some members, it re-
speeches demonstrate Judge Thomas
mains unclear whether his chances at
has a strong conservative agenda.
winning confirmation will be seriously
Judge Thomas insisted on both days
affected. But the contest is clearly not
that he would bring no ideological
over; by the second day of hearings
agenda to the court and said he be-
last year on the nomination of Judge
lieved that a judge should approach a
David H. Souter to the Supreme Court,
case by shedding all his preconceptions
any opposition on the committee had
the way a runner strips down for a
evaporated. Members were referring
to him respectfully as "Justice-to-be"
race. [Excerpts, page A20.]
and recommending what he do with his
Contentious Tone
vacation time when he joined the
Court.
The contentious tone of the hearing
was set in today's opening colloquy
A Record of Comments
with Senator Howard Metzenbaum, an
But unlike Judge Souter who had not
Ohio Democrat, the only committee
written or spoken publicly much, Judge
member to have voted against Judge
Thomas has an extensive record of
Thomas's confirmation to the United
comments suggesting, some highly
critical of Congress and certain Su-
States Court of Appeals for the District
preme Court opinions.
of Columbia Cicuit last year.
Judge Thomas said today that his
Mr. Metzenbaum said he was greatly
wife had remarked that if Judge Souter
concerned about Judge Thomas's ex-
was known as the "stealth" nominee,
planations on Tuesday of his earlier
he should be known as "Bigfoot."
speeches and writings. "Your complete
repudiation of your past record makes
50
Republican strategists said that de-
After Mr. Metzenbaum's persistent
spite the skepticism that his answers
questions about abortions led off the
produced among some committee
hearing, the same issue was sharply
members he performed well and gave
pressed in the afternoon by Senator
no cause for any momentum to oppose
Patrick J. Leahy, Democrat of Ver-
him. One said that he and his advisers
mont. The Senator sought to question
were willing to have him "take his
Judge Thomas again on what he meant
lumps" over whether his answers were
in 1987 when he briefly but pointedly
annoyingly repetive or even implausi-
praised an article that argued Roe V.
ble.
Wade was immoral and a violation of
The alternative, the strategist said,
natural law. Judge Thomas's writings
was for him to engage in an open-ended
in support of natural law, the concept
debate that could prove perilous.
that there is a higher, more fundamen-
Still, there was anxiety over the
tal law that transcends any written
charge that in explaining away his past
law, has been the focus of much ques-
comments he was tailoring his re-
tioning.
marks to win confirmation. The charge
Mr. Leahy seemed annoyed when
of a confirmation conversion had
Judge Thomas said for the first time
proved devastating in 1987 to Judge
today that he may never have read the
Robert H. Bork who was rejected for a
article by Lewis Lehrman, a New York
Supreme Court seat after a bruising
businessman and patron of conserva-
political fight.
tive causes. In his 1987 speech entitled,
"Why Black Americans Should Look to
Affirmative Action Opponent
Conservative Policies," he praised the
Although Judge Thomas has gained
Lehrman article "on the meaning of
a reputation as an outspoken opponent
the right to life is a splendid example of
of affirmative action, the subject has
applying natural law."
been little discussed so far. Today he
Judge Thomas said he might have
told Senator Hank Brown, a Colorado
only skimmed the piece before he
Republican, that he opposed timeta-
spoke and had not looked at it in years.
bles, preferences or quotas but said he
Judge Thomas said he disavowed the
supported efforts to seek out and enlist
message in the article insofar as it
fully qualified minorities. Under such a
meant that natural law should be a
program, he said, he was able to attend
basis for a court's ruling.
Yale Law School.
When Mr. Leahy asked Judge Thom-
"The effort on the part of Yale dur-
as if a fetus has any constitutional
ing my years there was to reach out
rights, he paused for several seconds
and open its doors to minorities whom
before saying that he did not believe
it felt were qualified, and I took them at
there were any cases that took that
their word on that," he said. "And I
view but he would have to check. In
have advocated that very kind of affir-
fact, Roe V. Wade explicitly holds that a
mative action."
fetus does not have constitutional
While Judge Thomas sat alone at a
rights.
green-baize table in the Senate Caucus
Under repeated questioning from
room with nothing before him on Tues-
Mr. Leahy, Judge Thomas said that he
day, today he fingered a pocket-sized
did not believe he had ever expressed
booklet of the Constitution. And by the
an opinion about Roe even in private
nor had he ever formulated a personal
opinion on the case in the 18 years since
it was decided.
Questions over
In Roe, the Court held that a right of
privacy could be found in the 14th
the appearance of
Amendment, the post-Civil War
amendment that guarantees citizens of
a 'confirmation
all the states a range of liberties, in-
cluding due process.
conversion.'
end of the day, the table held copies of
several of the Judge's articles and
speeches; copies delivered to him by
Senators, who were pressing him to
read his own words and be prepared to
answer further questions about them.
Judge Thomas is expected to testify
through Friday. Next week will be de-
voted to hearing witnesses for and
against the nomination.
Senator Joseph R. Biden Jr. of Dela-
ware, the committee chairman, is ex-
pected to schedule a vote sometime
later in the month.
The New York Times
57
SEPTEMBER 12, 1991
A21
Sticking to the Script
Confirmation Process Lets Judge Say
As Much, or as Little, as He Chooses
By LINDA GREENHOUSE
Special to The New York Times
WASHINGTON, Sept. 11 - Judge
overwhelmingly confirmed to an im-
Clarence Thomas's second day before
portant Federal appeals court just last
For Senators who
the Senate Judiciary Committee of-
year and who has been found "quali-
fered a graphic display of the limits of
fied" by the American Bar Association
want detailed
the modern Supreme Court confirma-
to sit on the Supreme Court.
tion process.
Or the Senators could simply refuse
As part of the Senate's
to confirm him on the ground that he
answers, there
constitutional role of ad-
has not been forthcoming enough for
News
vice and consent, the com-
them to make a judgment. That is a
are few options.
Analysis
mittee can summon nomi-
difficult option because a number of
nees, sit them down before
other recent Supreme Court nominees
the glare of television
have been permitted by the Senate to
lights, probe their records and pepper
The relative handful of unscripted,
say almost nothing of substance. An-
them with questions. The one thing the
unrehearsed moments during today's
tonin Scalia was confirmed unanimous-
committee cannot do is make nomi-
proceeding offered a hint that if he is
ly in 1986 despite refusing to give his
nees provide substantive answers.
confirmed Judge Thomas might not
views on Marbury V. Madison, the deci-
Judge Thomas stuck doggedly to his
necessarily be as predictable as some
sion, nearly 200 years old, that estab-
script today, a script that called for
lished the basis for the Supreme
of his conservative supporters might
him to refuse to discuss abortion on the
hope.
Court's exercise of the power of judi-
ground that he did not want to compro-
cial review.
One example was his discussion with
mise his ability to decide an abortion
And a year ago, David H. Souter was
Senator Hank Brown, Republican of
case impartially.
confirmed to the Supreme Court de-
Colorado, of the role of precedent in the
Questioned Repeatedly
spite his refusal to give his views on
Court's decision-making process.
Questioned repeatedly about his
abortion and other pressing subjects.
Precedent was "important," Judge
many speeches and articles advocating
Several of Judge Thomas's supporters,
Thomas said, not surprisingly.
that the Constitution be understood in
including his principal patron, Senator
John C. Danforth of Missouri, have
Might some types of precedents be
light of the framers' belief in a higher
hinted that for the Senate to hold this
more important than others, Senator
or "natural" law, he insisted he had
been speaking only about a political
nominee to a higher standard might
Brown asked.
theory and not as a judge who would
give an appearance of racism.
Judge Thomas replied that he had
"read somewhere" that the Court
actually decide cases by reference to
Strict Constructionist Approach
should treat precedents governing
natural law.
Judge Thomas took a strict construc-
commercial relationships as more sta-
Democratic Senators who found
tionist approach to his own writings
ble than those dealing with individual
these answers either uninformative or
and speeches, ascribing narrow mean-
inconsistent with the written record
rights. He did not understand that ap-
ings to statements that sounded sweep-
proach and did not agree with it, he
ing when Senators read them aloud in
said, adding that he would give equal
the hearing room. For example, Sena-
weight to precedents concerning indi-
The unrehearsed
tor Howell Heflin, Democrat of Ala-
vidual rights and commercial relation-
bama, read from a 1988 speech in
ships.
moments hint
which Judge Thomas had declared that
"the higher law background of the Con-
The "somewhere" in which the con-
stitution, whether explicitly appealed
trary view appeared was the Court's
that Thomas
to or not, provides the only firm basis
majority opinion last June in Payne V.
for a just, wise, and constitutional deci-
Tennessee, written by Chief Justice
might be
sion."
William H. Rehnquist. Over a vigorous
The nominee insisted, with reference
disssent by Justice Thurgood Marshall,
to this and other similar passages, that
whose seat Judge Thomas would fill,
unpredictable.
he had been speaking as a "part-time
Chief Justice Rehnquist essentially set
political theorist" who was trying to
out guidelines for overturning existing
help conservative audiences become
precedents, with cases on individual
were left writhing in frustration. Sena-
more receptive to aggressive civil
rights among the most vulnerable.
tor Patrick J. Leahy of Vermont was
rights enforcement. He said he had
hoped that conservatives would under-
That decision was evidently not cov-
openly incredulous in the face of Judge
stand that natural law was the basis for
ered during Judge Thomas's prepara-
Thomas's assertion that in the 18 years
the opposition to slavery.
tion sessions for his confirmation hear-
since the Supreme Court established a
constitutional right to abortion in the
"I'm not saying it worked," he re-
ing. His spontaneous response to Sena-
Roe V. Wade decision he had never
marked to Senator Heflin about those
tor Brown's question perhaps said
expressed a view, even in conversation,
efforts. He added: "I certainly never
more about his judicial instincts than
about the case.
thought I'd be having this discussion."
his carefully crafted and repetitively
Yet as a practical matter, the options
Judge Thomas's adherence to his
delivered answers to the questions he
strategy of refusing to discuss abortion
and his team did expect. More such
are fairly limited for Senators who
believe they are not getting the full
on the ground that he would otherwise
spontaneity during the remainder of
compromise his impartiality led him to
the proceedings would be enlightening.
story from the nominee.
make the surprising suggestion that
But, given the way the confirmation
They could call him a liar, an unpal-
sitting Justices who had written opin-
process has evolved, it is not particu-
atable option that would involve not
larly likely.
only a breach of protocol but also a
ions on abortion might not be impartial
credibility contest that the Senators
enough to decide future abortion cases.
would have no assurance of winning.
That suggestion came in answer to a
question from Senator Leahy, who not-
An Unattractive Option
ed that Justice Scalia has expressed
opposition to Roe V. Wade, while Jus-
Or they could credit his sincerity but
tice Harry A. Blackmun, the opinion's
challenge his competence, on the
author, has expressed his continued
ground that he must not have under-
support for it. Should those Justices be
stood the implications of what he was
disqualified from sitting in future abor-
saying in his past speeches and articles
tion cases, Senator Leahy asked.
if he now believes that he was not
"Each of them has to determine in,
advocating the use of natural law as a
his mind at what point they have com-
tool for deciding constitutional cases.
promised their objectivity or their abil-
That, too, is an unattractive option in
the case of a nominee whom the Senate
ity to sit fairly on those cases," Judge
Thomas replied.
52
The New York Times
SEPTEMBER 12, 1991
A21
Specter Dons Mantle of Republican Maverick at Senate Hearing
By RICHARD L. BERKE
Special to The New York Times
WASHINGTON, Sept. 11 - While his
him from voting on Judge Thomas's
cross-examination of Judge Clarence
confirmation last year to the United
Thomas today was by no means harsh,
States Court of Appeals for the District
Senator Arlen Specter sounded like the
of Columbia Circuit, insists that he has
grand inquisitor compared with other
not decided.
Republicans on the Senate Judiciary
"I'm really not leaning," he said.
Committee.
"I'm here to listen."
Polite yet insistent, Mr. Specter put
But Mr. Specter is known less as a
the Supreme Court nominee on notice
listener than as a legal pontificator. His
that he had problems with aspects of
questions today for Judge Thomas
his record, particularly his view of the
were a lot longer than most of the
role and performance of Congress.
answers. And they tended to ramble.
"You have repeatedly, over such a
long period of time, expressed a very
To his credit, Mr. Specter is widely
strong view as to Congressional inepti-
respected for his knowledge of Consti-
tude," Mr. Specter told the nominee.
tutional issues. As in the Bork case, he
has immersed himself in Judge Thom-
With moderates like Charles McC.
as's writings and rulings. Even during
Mathias Jr. of Maryland now retired,
a vacation at the beach last month, his
Mr. Specter is the only Republican on
aides said, they delivered materials on
the committee who is viewed as a
Judge Thomas to the Senator every
possible swing vote on the Thomas
day. And he returned to Washington a
nomination.
The role of Republican maverick is
week early to prepare for the hearings.
not new for the onetime prosecutor
But his detractors say that Mr. Spec-
from Pennsylvania.
ter is more of a show horse than many
in 1987, after a tense 90-minute collo-
of his colleagues, and that his demean-
quy with Judge Robert H. Bork, Mr.
or sometimes borders on arrogant.
Specter was the sole Republican on the
Still, Mr. Specter wins plaudits from
panel who voted against his confirma-
people who are often at odds with Re-
tion to the High Court. That vote helped
publican lawmakers.
set off the burst of opposition that
"Senator Specter always plays an
spelled Judge Bork's spectacular de-
important role with respect to champi-
feat and turned the national spotlight
oning civil rights," said Ralph Neas,
on Mr. Specter.
executive director of the Leadership
It is a vote that Mr. Specter could
Conference on Civil Rights, which op-
never forget - even though it often
posed Judge Bork in 1987 and is now
seems as if he wants to.
lobbying against Judge Thomas.
"There's been hardly a day since the
Senator Dennis DeConcini of Ari-
Bork hearings that I have not heard
zona, considered a possible swing vote
about it," Mr. Specter said in an inter-
on Judge Thomas on the Democratic
view today. "Judge Bork was more
than just another nominee. He was a
side, described Mr. Specter as one of
the most conscientious members of the
philosophical standard-bearer."
panel.
No Regrets on Bork Vote
"We all have the propensity to want
His daily reminders about Judge
to listen to ourselves," Mr. DeConcini
Bork are usually not complimentary.
said. "Maybe he takes a little longer to
Many Republicans are still infuriated
get his questions out. But I think he's a
with Mr. Specter's vote, and the Sena-
very thoughtful guy. Some of my Re-
tor says he expects conservative Re-
publican colleagues feel they have to go
publicans who plan to run against him
with the President, whoever is sent up
in next year's primary election to
here. Life would be much easier for
make the Bork vote a centerpiece of
him if he were an Alan Simpson and
their campaigns.
just went along with everyone they
Mr. Specter insists that he does not
sent up here."
regret his vote against Judge Bork, but,
Gary Bauer, chairman of the Citi-
acknowledges that it wounded him po-
zens Committee to Confirm Clarence
litically. How much? "I'll let you know
after 1992," he said.
Thomas and a former Reagan Admin-
But the 61-year-old Senator, a one-
istration official, called Mr. Specter's
vote on Judge Bork "irritating at
time Democrat who was first elected in
best."
1980, says he can already envision the
"But," he said, "the good thing about
attacks in commercials on his vote on
Washington is you get other chances.
Judge Bork. He has a ready response.
And he's got a chance now to redeem
"I'm going to say that Judge Bork had
himself on Judge Thomas."
the most extreme views of anyone ever
nominated to the Court," he said.
In part because of the continued fall-
out on the Bork vote, and because he
faces re-election, it is perhaps improb-
able that Mr. Specter will ultimately
oppose Judge Thomas. Letters to his
office are overwhelmingly in favor of
confirmation, his aides say, but the
telephone calls are overwhelmingly
against it.
Mr. Specter, whose staff members
say a scheduling conflict prevented
53
The New York Times
SEPTEMBER 12, 1991
A22
Sizing Up the Talk of 'Natural Law':
Many Ideologies Discover a Precept
By DAVID MARGOLICK
"Natural law is not per se good or bad;
Though the Supreme Court cited nat-
all of us have some sense of intrinsic,
ural law to strike down wage-and-hour
In constitutional law, as in politics,
inalienable rights. Unfortunately,
regulations, notably in the landmark
terms that are ostensibly value-free
Judge Thomas plucks from here and
1905 case of Lochner V. New York, this
can become buzzwords.
there in natural law to follow an agen-
tendency generally waned as constitu-
What has happened to such political-
da that is relentlessly conservative."
tional doctrine and precedents prolifer-
ly neutral phrases as "law and order"
But she said that in Judge Thomas's
ated.
and "states' rights" has arguably hap-
first two days of testimony he had
'All Manner of Causes
pened to "natural law." It has been
downplayed his reliance on natural law
captured by the conservatives to but-
theory so repeatedly that it was hard to
In his 1980 book "Democracy and
tress rights not articulated in the Con-
know where he stood. "He's said differ-
Distrust," John Hart Ely of Stanford
stitution - just as liberals seem to
Law School called the doctrine "dis-
ent things at different times, and his
have captured "human rights" and
only leitmotif is pleasing the audi-
credited." "You can invoke natural law
"the right to privacy."
ence," she said.
to support anything you want," he
So these days, when the phrase "nat-
wrote. "Natural law has been sum-
Ms. Resnik is one of nine constitu-
ural law" is mentioned, as it has been
tional scholars who wrote to the Senate
moned in support all manner of causes
repeatedly in the hearings on Judge
Judiciary Committee last week ex-
in this country - some worthy, others
Clarence Thomas's nomination to the
nefarious -and often on both sides of
pressing concerns that Judge Thom-
Supreme Court, it conjures up an im-
the same issue."
age of invasive, repressive jurispru-
Natural law was nonetheless invoked
dence - doctrines exalting corporate
to justify the Nuremberg Trials and the
power over individual rights, invalidat-
ing laws regulating wages and hours or
A concept used
Civil Rights movement. And natural
law language continued to appear from
remedial environmental legislation or
to defend and
both sides of the Court's political spec-
restricting nonconforming life styles.
trum. In 1976, Justice John Paul Ste-
That is why civil libertarians have
vens, joined in dissent by Justices
cowered with Judge Thomas's every
uphold slavery.
Brennan and Marshall wrote: "I had
use of the term, and why Senators
thought it self-evident that all men
Joseph R. Biden Jr. and Howell Heflin,
were endowed by their creator with
among others, have grilled him on his
liberty as one of the cardinal unalien-
philosophy.
as's views on natural law masked both
able rights." A decade later, Chief Jus-
A Pantheon of Values
sloppy reasoning and a substantive,
tice Warren Burger referred to "Ju-
conservative political agenda..
deo-Christian moral and ethical stand-
Used in its broadest sense, natural
"As a matter of constitutional meth-
ards" in an opinion upholding state
law could join the pantheon of values,
od, natural law is disturbing when in-
anti-sodomy laws.
including truth, justice and the Ameri-
voked to allow supposedly self-evident
Still, such references have been in-
can Way, to which most citizens sub-
moral 'truth' to substitute for the hard
creasingly rare. While liberals tended
scribe. Nearly everyone, religious and
work of developing principles drawn
to favor terms free of theological over-
non-religious people alike, would agree
from the American Constitutional text
tones like "human rights" to describe
that certain precepts, like life, liberty
and precedent,' they wrote.
their version of higher law, natural law
and the pursuit of happiness, form the
More substantively, they. said, his
became, according to Thomas Grey of
foundation of the values encoded in the
philosophy threatened precedents es-
Stanford Law School, the province of
Constitution.
tablishing the constitutional right of
three conservative groups. The first
But the term "natural law," while
privacy, and therefore of abortion and
were Catholic theologians, who cited
ringing, can also be squishy and elastic.
contraception. Other signers include
natural law to justify the church's mor-
Over the years, it has been seen as both
Sylvia Law of New York University,
al teachings. The second were follow-
synonymous with, and antithetical to,
Thomas Grey and Barbara Babcock of
jers of Leo Strauss, a University of
civil rights and civil liberties, and has
Stanford University and Frank Michel-
Chicago political theorist who believe
been used not only by those who justify
man and Christopher F. Edley Jr. of
slavery, but by those who castigate it.
governments could invoke natural law
Harvard University.
The concept is broad enough to be
to oppose a broad range of phenomena
But Richard Epstein, a law professor
invoked by the Rev. Martin Luther
they deemed decadent, including ho-
at the University of Chicago whose
King Jr. and by Chief Justice Roger
mosexuality and pornography. The
views that various industrial and envi-
Taney, author of the Dred Scott case;
third used natural law to justify unbri-
ronmental legislation violates natural'
by both the High Court's liberal stal-
dled property rights and free enter-
law have been mentioned in the hear-
wart, Justice William J. Brennan Jr.
prise.
ings, said the idea that Judge Thomas
and Lewis Lehrman, the conservative
"The fact that Judge Thomas be-
believed in natural law hardly made
politician; by Judge Clarence Thomas
lieves in natural law is fine; most
him either extreme or suspect. For all
and the man he would succeed, Justice
Americans do," said Cass Sunstein of
their other differences, he noted, John
Thurgood Marshall, who is retiring.
the University of Chicago Law School.
Locke, Thomas Jefferson, James Mad-
Natural law has most often been
"But if he actually believes it, that's
ison and Abraham Lincoln did.
cited in making the kind of sweeping,
something to ask a lot of questions
What Judge Thomas's critics were
authoritative-sounding pronounce-
about."
harping on, Mr. Epstein added, was
ments that can appear either immortal
less his adherence to principles of natu-
or primitive years later. For every
ral law than disagreements over the
glorious judicial paean to life and lib-
direction he might go with them. But
erty there is a reminder that posterity
can deal harshly with those, like Jus-
one way or another, he added, the
whole issue was "a tempest in a tea-
tice Joseph Bradley, who paint their
views as timeless principles, but whose
pot." "It's an example of how the pro-
tracted confirmstion struggles in an
arguments ultimately came to sound
ridiculous.. It was he who wrote the
era of divided government have led
people to overemphasize irrelevan-
Supreme Court's 1872 decision uphold-
cies," he said. "All this is done at such
ing a state's right to bar women from
a level of abstraction that it gives no
practicing law.
information."
"Civil law, as well as nature herself,
At one time or another, particularly
has always recognized a wide differ-
ence in the respective spheres and des-
in post-Revolutionary days when the
tinies of man and woman," he wrote.
American legal system was still large-
"The paramount destiny and mission
ly inchoate, judges often invoked natu-
of woman are to fulfill the noble and
ral law to support their arguments. In
the early 19th century, for example,
benign offices of wife and mother. This
Chief Justice Lemuel Shaw of the Mas-
is the law of the Creator."
sachusetts Supreme Judicial Court
Judith Resnik of the University of
called the acquisition of a slave "con-
Southern California Law Center, said:
trary to natural right."
The Washington Post
SEPTEMBER 12, 1991
A23
George F. Will
The Modest Significance of the Modern Court
The Clarence Thomas contretemps
dential politics, have been reduced to a
era featured enactment of legislation
inaugurates the post-civil rights era.
merely blocking agenda, and to ideo-
opening access to schools, voting
The primary significance of the Thom-
logical grandstanding against the judi-
booths, workplaces and public accom-
as nomination is its merely modest
cial consequences of their protracted
modations. The defining principle of
significance: it does not matter mighti-
irrelevancy in presidential politics.
the era was that blacks and whites
ly to the course of the Supreme Court,
But the primary reason for fierce
should be treated alike and as equals.
and the court matters decreasingly to
liberal opposition to Thomas is that his
The moral and intellectual decline of
the solution of serious social problems.
nomination comes at a moment when
the civil rights impulse was signaled in
Never before has there been such a
the intellectual balance of American
1968 when the Kerner Commission,
disproportion between the controversy
politics regarding social reform gener-
appointed in response to the urban
surrounding a judicial nominee and the
ally, and race in particular, is changing.
riots, declared that blacks, unlike the
probable consequences of his confir-
The focus of thoughtful people is shift-
immigrants who prospered in earlier
mation. Of the Supreme Court's 64
ing away from the strategy of estab-
times, could not achieve unassisted up-
decisions last term involving substan-
lishing new individual and group rights
ward mobility because entry-level jobs
tial written opinions, only 11 were by
by litigation and judicial fiat, and to-
were disappearing. That false prognosis
5-4 votes. Justice Marshall, whom
ward the political process of creating
bred a disastrous moral stance.
Thomas will replace, voted with the
social settings that nurture character.
The prognosis was refuted, as Mi-
four-person liberal minority in six. Re-
Never before has a Supreme Court
chael Barone of U.S. News & World
placing him with a liberal rather than
nominee been SO much defined by his
Report notes, by the most prodigious
Thomas would not alter the pattern of
persona-by his biography more than
job creation in world history. In the 20
liberal defeats in this era when 5-4
liberal victories are rare.
his philosophy. Some previous nomi-
years after the Kerner Commission,
nees have carried powerful symbolic
the number of American jobs in-
When Robert Bork was nominated
significance-Marshall, nominated in
creased 50 percent and waves of Asian
in 1987 to replace Justice Powell, who
1966, was the first black; Louis Bran-
and Hispanic immigrants began rising
often was a swing vote in crucial
deis, in 1916, was the first Jew. Thom-
through entry-level jobs.
decisions of the closely divided court,
as's nomination is highly charged with
The Kerner Commission's moral
the court's composition hung in the
balance, and Democrats could hope
symbolic meaning because of the rela-
stance was, implicitly, that blacks
that the conservative era in presiden-
tionship between what he is and what
should be treated as a crippled commu-
tial politics would end when the Rea-
he thinks.
nity, as dependent wards of a govern-
gan administration did. Today, howev-
He is a product of remarkable up-
ment dispensing racial preferences and
er, political probabilities indicate five
ward mobility. He thinks there is only
other group rights and entitlements.
more years of a Republican adminis-
modest potential for judicial remedy of
Today's civil rights lobby, which is
tration, and actuarial tables indicate
social ills, because courts are instru-
leading the charge against Thomas, is
ASSOCIATED
that the administration will have an
ments of limited utility, and because
composed of people comfortably situat-
opportunity to make additional conser-
judges' powers, properly understood,
ed as brokers of these benefits.
cure is not more litigation about indi-
adversarial clash of competing claims to
vative nominations. The court's shape
are more narrow than many recent
Whatever the reason why a majority
vidual rights.
rights, resulting in judicial fiat.
is set for the foreseeable future.
justices have thought.
of black babies are born to single
Laws can contribute to the creation
The fierce contention about Thom-
Why, then, the sound and fury
The civil rights era, accurately de-
women, the reason is not the econo-
of the complex social ecology of nur-
as' confirmation reflects the unwhole-
against Thomas? What does it signify
scribed, featured attacks on legal im-
my's failure to produce jobs. And
turing families and civic habituation. But
some centrality of courts in America's
about him and these times? One an-
pediments to black participation in the
whatever the cure for this crisis of
that is primarily the business of political
recent governance. The importance of
swer is that liberals, impotent in presi-
nation's civic and economic life. The
family decomposition might be, the
policy, and of persuasion, not of the
Thomas is that he knows better.
The Washington Post
SEPTEMBER 12, 1991
AI
Thomas Refuses to State
View on Abortion Issue
Nominee Steadfast Amid Senators' Questions
"consistent on this issue of natural
By Ruth Marcus
law" and pointing repeatedly to a
Washington Post Staff Writer
statement at his confirmation hear-
Supreme Court nominee Clar-
ings for the federal appeals court in
ence Thomas yesterday said he had
February 1990 at which he sug-
no opinion on whether the Consti-
gested he would follow a more tra-
tution protects the right to abortion
ditional approach to constitutional
and had not discussed the issue,
interpretation.
even in a private setting, in the 18
He also distinguished between
years since the court decided it.
his roles as administration policy-
Elaborating on his views on the
maker and jurist. "I advocated as an
right to privacy, the legal underpin-
advocate, and now I will rule as a
ning for the court's recognition of a
judge," he said.
constitutional guarantee to abortion,
Sen. Alan K. Simpson (R-Wyo.)
Thomas said he believed the right to
said suggestions of a confirmation
privacy for married couples is a fun-
conversion were "an act of desper-
damental constitutional right, mean-
ation" by groups opposed to Thom-
ing that government can interfere
as and that natural law "has been
with it only in extreme cases.
selected as an issue to try to con-
But he did not say whether that
found people because natural law is
right extends beyond the marital
an inherently vague concept."
setting. He steadfastly refused at-
Thomas tangled with Sens. How-
tempts to pin him down on the abor-
ard M. Metzenbaum (D-Ohio) and
tion issue, despite complaints by
Patrick J. Leahy (D-Vt.) over his re-
frustrated Democrats that he was
fusal to discuss the issue of abortion
discussing other cases and consti-
rights. Thomas-comparing his sit-
tutional doctrines likely to come
uation to that of a football referee—
before the court.
insisted it would violate his impar-
Four of the five Democratic sen-
tiality as a sitting federal judge.
ators who questioned Thomas on
When Metzenbaum invoked the
the second day of his confirmation
specter that American women "will
hearings before the Senate Judicia-
once again be forced to resort to
ry Committee expressed varying
brutal and illegal abortions" if the
degrees of concern that the nom-
Roe v. Wade abortion ruling is over-
inee was backtracking from or con-
turned, Thomas came closest to
tradicting earlier statements, pri-
expressing some thoughts on the
marily about the role of natural law
question.
in interpreting the Constitution.
"I guess as a kid we heard the
Sen. Howell T. Heflin (D-Ala.), a
hushed whispers about illegal abor-
swing vote on the committee, told
tions and individuals performing
Thomas that there was "an appear-
them in less than safe environments,
ance of a confirmation conversion,"
but they were whispers," he said.
"
an issue, Heflin pointedly noted,
Of course, if a woman is sub-
"that can affect the evaluation that
jected to the agony of an environ-
members of the committee may
ment like that, on a personal level,
give as to integrity and tempera-
certainly, I am very, very pained by
ment." Heflin devoted his entire
that. I think any of us would be. I
half-hour of questioning to asking
would not want to see people sub-
the nominee to square his previous
jected to torture of that nature."
statements with his current position
But, he said, "as difficult as it is
that natural law plays no role in
for me to anticipate or to want to
constitutional adjudication.
see that kind of illegal activity, I
"What I read is somewhat differ-
think it would undermine my ability
ent from the tone" of earlier re-
to sit in an impartial way on an im-
marks, said Sen. Paul Simon (D-III.).
portant case like that."
Sen. Arlen Specter (R-Pa.) also
Later, in an exchange with
said that Thomas, before the con-
Leahy, Thomas said he had never
firmation hearings, had "shifted"
discussed Roe v. Wade, a decision
position several times on the legal-
that Thomas described as "one of
ity of minority preference programs
the more important, as well as one
and set-asides.
that has been one of the more high-
Thomas, backed by Republicans
ly publicized and debated cases."
Thomas said that when the case
on the committee, sought to defuse
that concern, saying he had been
was decided in 1973, he was a mar-
ried law student who was also work-
See THOMAS, A4, Col. 1
ing, and "I did not spend a lot of
56
time around the law school doing
He also said he thought the Su-
Hispanics," said DeConcini, another
what all the other students enjoyed
preme Court was correct during the
potential swing vote on the commit-
so much, and that is debating all the
New Deal when it abandoned its
tee. "I get that feeling, and from the
current cases."
practice of striking down social wel-
opposition that has come forward
"Judge Thomas, I was a married
fare legislation as violative of eco-
from the Hispanic community, you
law student who also worked, but I
nomic rights, and he stated his flat
certainly didn't leave them with any
also found at least between classes
agreement with a 1977 case, Moore
great impression you were inter-
that we did discuss some of the
v. East Cleveland, invalidating a city
ested in their problems, Judge."
law," Leahy responded.
zoning ordinance that defined fam-
By yesterday evening, the White
In the years since the ruling,
ilies because it barred a grandmoth-
House had provided DeConcini with
Thomas told Leahy, his only expe-
er from living with her two grand-
a list he had requested of the meet-
rience in discussing the case was "in
sons, who were first cousins.
ings Thomas held with Hispanic
the most general sense that other
Thomas and his defenders said
groups while at the EEOC.
individuals express concerns one
his comments involved either set-
Thomas expressed a view on the
way or the other and you listen and
tled areas of the law, such as the
importance of upholding Supreme
you try to be thoughtful. If you are
right to privacy or the post-New
Court precedents that appeared
asking me whether or not I have
Deal cases, or situations in which he
different from that endorsed by a
ever debated the contents of it, the
simply offered his comments on is-
majority of the justices on the last
answer to that is no, senator."
sues without stating how he would
day of the term this year. The court
Leahy pointed out that Thomas
come down on them.
said it would be more reluctant to
had participated in a White House
Thomas also invoked his status as
overturn precedents in property
report on the family that criticized
a sitting federal judge, contasting it
rights and other economic rights
Roe, cited the case in a footnote to a
to his freedom to comment on is-
cases than in those concerning in-
law review article, mentioned the
sues while he was an official of the
vidual rights.
abortion issue in a reference to an
executive branch.
The standard for overturning pre-
article about natural law and a fetal
"I think it is important that when
cedents "should be as uniform as pos-
right to life and discussed black vot-
one becomes a member of the ju-
sible," Thomas said, not "less for in-
ers' views on abortion in a newspa-
diciary that one ceases to accumu-
dividual rights than for commercial
per article.
late strong viewpoints and
to
cases." He said it "seems to me the
"I cannot believe that all of this
maintain and secure that level of
cases in the individual rights area
was done in a vacuum, absent some
impartiality and objectivity neces-
deserve the greatest protection."
very clear considerations of Roe v.
sary for judging cases," he said.
Wade," said Leahy, who promised
Toward the close of the session
to "revisit this subject a tad more."
yesterday, Thomas commented ex-
Asked whether the fetus is a per-
tensively on the proper test to be
son protected by the Constitution,
used in cases involving the separa-
Thomas, following a lengthy pause,
tion of church and state, an issue
said the Supreme Court had never
that the court has agreed to decide
found such protection, adding, "I
in the coming term and on which
would have to.go back and rethink
the justices are closely divided.
that." The court in Roe held that
Thomas said he had no "personal
"the word 'person,' as used in the
disagreement" with the current test
the court uses, although he noted it
14th Amendment, does not include
had been difficult to apply. The
the unborn."
Bush administration is backing the
At various points in his testimo-
side in the case that has asked the
ny, Thomas said he had not read the
court to adopt a new test.
White House report on the family,
Simon asked about the childhood
even after it surfaced as an issue in
experience of Rep. Dan Glickman
news reports concerning his nom-
(D-Kan.), who is Jewish. As a boy,
ination this summer. He said his
Glickman was escorted from his
only interest in the White House
fourth-grade class each day while his
working group on policy had been
Christian schoolmates prayed. In re-
on the issue of low-income families.
He said he had only "skimmed" the
sponse, Thomas noted his own feel-
ings of exclusion when white south-
article on natural law and the fetus's
ern classmates had talked about the
right to life before praising it in a
Civil War, and he said, "My concern
1987 speech as a "splendid example"
would be with someone like Danny
of applying natural law, and had not
Glickman that we understand the
reread the article, written by con-
effects of the government's per-
servative businessman Lewis Lehr-
ceived endorsement of one religion
man, since being nominated. The ar-
over another," suggesting his poten-
ticle has been a central part of the
tial agreement with a middle-ground
debate about Thomas's nomination.
Leahy and Metzenbaum both con-
standard adopted by Justice Sandra
Day O'Connor.
trasted Thomas's reticence on the
In other testimony and comments
subject of abortion with his willing-
yesterday:
ness to discuss other legal issues.
Thomas told Sen. Dennis DeCon-
For example, Thomas, in answer-
cini (D-Ariz.) he "had no reason to
ing questions Tuesday from Sen.
Strom Thurmond (R-S.C.), talked
question or to disagree with" the
about habeas corpus reform to ex-
approach the court currently uses
pedite handling of death row cases;
in protecting women from sex dis-
crimination.
commented on a Supreme Court
DeConcini said he was troubled
decision in June protecting victims'
rights: and discussed the good-faith
by Thomas's record with regard to
exception to the rule excluding il-
Hispanics while head of the Equal
legally seized evidence from use in
Employment Opportunity Commis-
criminal trials.
sion. "The feeling I have is you re-
ally were not paying attention to
The Washington Post
SEPTEMBER 12, 1991
A5
For Committee Democrats, Nominee's Lack of Views Can Be a Target Too
decision on abortion-in a footnote
tral to the confirmation hearings-
Despite attempts to make him ap-
becomes a judge, that's what one
By Fred Barbash
to a scholarly paper.
is whether Thomas's disinclination
pear less than candid, Thomas doubt-
starts doing.
I think it's impor-
Washington Post Staff Writer
On those issues about which the
to claim controversial views, or any
less knows that expressing an opin-
tant for judges not to have strong
Unable to make an effective issue
Supreme Court nominee's views
views at all on a subject like abor-
ion on Roe v. Wade-if, indeed, he
ideological views."
so far of Clarence Thomas's views,
seemed to be an undeniable matter
tion, is disturbingly disingenuous.
has one-could cost him the confir-
Republicans on the committee,
Democrats on the Senate Judiciary
of record in speeches and writings,
The Democrats are picking their
mation by alienating one side or the
for the most part, tried to make
Committee tried yesterday to focus
the Democratic senators implied
issues carefully. Although Thomas
other. Not surprisingly, he chose-
sure Thomas stayed stripped down
attention on his professed lack of
that Thomas had had some sudden,
is expected to be before the com-
as have most recent nominees-to
yesterday. Sen. Alan K. Simpson
them.
politically expedient changes of
mittee at least into Friday, they so
decline to answer.
(R-Wyo.) talked for most of his al-
After repeatedly asserting-in
opinion.
far have asked relatively few ques-
It was too much for Sen. Howard
lotted half hour of question time.
response to at least 30 questions on
In particular, they contrasted his
tions on subjects that could be po-
M. Metzenbaum (D-Ohio), who
Sen. Hank Brown (R-Colo.) ques-
whether a woman has a constitu-
previously expressed views on the
litically controversial for them, as
pointed out that both on Tuesday
tioned Thomas about such hot-but-
tional right to termi-
NEWS
subject of "natural law," indicating
well as for the nominee. Although
and yesterday, Thomas showed lit-
ton items as the computer system
nate a pregnancy-
ANALYSIS
he thought it was a good basis for
Thomas has been most outspoken
tle hesitation in answering ques-
and database he had installed as
that he could not an-
making judicial decisions, with his
during his career on affirmative ac-
tions about currently hot judicial
chairman of the Equal Employment
swer lest he compromise his impar-
repeated insistence during a day
tion programs and the use of hiring
issues such as sex discrimination,
Opportunity Commission.
tiality, Thomas told an incredulous
and a half of hearings that he
quotas, those issues have barely
church-state relations, victim im-
Sen. Charles E. Grassley (R-
Sen. Patrick J. Leahy (D-Vt.) that,
thought it was not.
come up.
pact statements and capital punish-
Iowa) complimented Thomas on his
in fact, he hadn't really formed an
Perhaps Thomas had undergone a
Instead they have pounded away
ment appeals.
fine family, gave readings from the
opinion on the matter.
"confirmation conversion," Sen.
at natural law-a juridical theory
"Senator," Thomas said,
I
do
Federalist Papers and Thomas's
"With all due respect, Judge, I
Howell T. Heflin (D-Ala.) suggested,
that most constituents know little
not believe that I either indicated
last confirmation hearing (to be a
have some difficulty with your an-
indicating such a strategy could
about and care about even less—
that I agreed with the outcome in
federal appeals court judge), and
swer," said Leahy, pointing out that
"raise issues that can affect the eval-
and, most repetitively, at abortion.
those cases
or not."
quoted the late Justice Harlan Fiske
Thomas had been immersed in a
uation that [we] may give as to in-
Abortion is relatively easy for the
Thomas sought to make a virtue of
Stone before turning Thomas's at-
wide variety of conservative policy
tegrity and temperament."
Democrats, most of whom are on
a lack of strong opinions. "One of the
tention to an Interstate Commerce
debates over the past 18 years and
The question thus far-or at
record with one position or another,
justices once spoke of having to strip
Commission case he had voted on
JUDGE CLARENCE THOMAS
had on one occasion cited Roe v.
least the question that the Demo-
and potentially dangerous territory
down like a runner to eliminate agen-
recently concerning ferry operators
views on "natural law" contrasted
Wade-the 1973 Supreme Court
crats would like to see become cen-
for Thomas.
das, to eliminate ideology. When one
on Long Island.
THE WASHINGTON POST
SEPTEMBER 12, 1991
A6
58
But Biden has expressed con-
swiftly repudiated any such views.
Natural Law
cerns about whether Thomas sub-
Among those who dispute the
scribes to various schools of natural
natural law approach are a number
law thinking that have been en-
of modern legal conservatives who
Places Focus
dorsed in recent years by some con-
insist that the Constitution protects
servatives.
only those rights that are specified
One school would use natural law
in the text of the document.
On Flexibility
to protect economic rights and
Adherents of the competing
strike down various state regula-
school, known as legal positivists,
tions and zoning restrictions. Al-
disdain the notion that, as Justice
though he said in a 1987 speech
Oliver Wendell Holmes phrased it,
Concept Embodies
that he found that approach "attrac-
the law is handed down from some
Non-Written Rules
tive," Thomas at the hearings has
"brooding omnipresence in the sky"
abjured any interest in returning to
whose content can be determined
the pre-New Deal era in which the
apart from reference to the written
By Ruth Marcus
court struck down social legislation,
law.
Washington Post Staff Writer
such as protection for workers.
Another school would find natural
The concept of natural law,
rights protections for various moral
which has emerged as a central if
precepts, such as the protection for
somewhat confusing focus of the
the right to life of the fetus, an ap-
Clarence Thomas confirmation
plication of natural law in an article
hearings, is that there is a fixed set
by conservative businessman Lewis
of principles that transcend the
Lehrman.
written law.
Thomas has written and spoken
Depending on the perspective of
extensively on the subject, concen-
the individual who espouses the nat-
trating on the question of slavery
ural law view, these principles may
and segregation in particular and
derive from a religious source or
civil rights in general, but also talk-
simply from general moral truths.
ing about such issues as the "liber-
Most important, natural law-al-
ation of commerce." He asserted
SO called "higher law"-is an elastic
that considering the framers' con-
concept that can be employed on
ception of higher law, as embodied
both sides of some arguments and
in the Declaration of Independence,
that has been adopted by both con-
is critical to a proper understanding
servative and liberal legal thinkers.
of the Constitution.
Both abolitionists and pro-slavery
Although natural law is an an-
advocates made natural law argu-
cient notion, with roots in the writ-
ments, and in modern times, so
ings of Aristotle and the philosophy
have those on both sides of the
of St. Thomas Aquinas, it has not
abortion debate.
been a central feature of modern
In taking on Supreme Court nom-
constitutional adjudication.
inee Robert H. Bork in 1987, for
Some of those who are concerned
example, Senate Judiciary Commit-
about Thomas's view on natural law
tee Chairman Joseph R. Biden Jr.
point to an 1873 case in which nat-
(D-Del.) insisted that he possessed
ural law arguments about the "nat-
rights not only because the Consti-
ural and proper timidity" of females
tution stated them, but because
were used to deny women the right
they were given to him by God.
to practice law. Thomas yesterday
The Dallas Morning News
59
September 11, 1991
22A
Thomas tries
to ease fears
at hearing
By Steve McGonigle
Washington Bureau of The Dallas Morning News
WASHINGTON - Supreme Court nominee
Judge Thomas began his testi-
Thomas over the years know that
Clarence Thomas tried Tuesday to convince the
mony: with a 13-minute statement
Judge Thomas is a man of fierce in-
Senate Judiciary Committee that he is not the ul-
sprinkled with references to his
dependence," said Sen. Orrin Hatch,
traconservative ideologue that his critics have
upbringing in rural Pin Point, Ga.
R-Utah. "When he is confirmed, he
His voice nearly broke at one point
will be nobody's man but his own."
portrayed. The black jurist spoke emotionally about his
when the recalled his grandparents,
Many of the questions Judge
roots in segregated Georgia, praised civil rights
who had raised him.
Thomas fielded from Mr. Biden and
"I" watched as my grandfather
Excerpts from Thomas' comments.
22A
Sen. Edward Kennedy, D-Mass., in-
was called 'boy.' I watched as my
volved his admitted interest in nat-
leaders and repeatedly denied that he would ap-
grandmother suffered the indignity
ural law, a philosophy built on a
ply the controversial concept of "natural law" in
of being denied the use of a bath-
proposition that some rights are
interpreting the Constitution.
roomt And through it all, they re-
God-given.
He also acknowledged during the first day of
mained fair and decent and good
The two Democrats voiced par-
confirmation hearings that there is a constitu-
people," he said.
ticular concern over a 1987 speech
tional right to privacy but refused to discuss
Seated behind Judge Thomas as
in which the judge praised an anti-
whether abortion rights are protected.
he spoke were his wife, teen-age
abortion article by conservative
"I do not think I could maintain my impartial-
son, sister and mother. His grand-
politician Lewis Lehrman as "a
ity and comment on that specific case," Judge
parents died several years ago.
splendid example of applying natu-
Thomas replied to a question from Sen. Joseph
Also nearby were Mr. Danforth,
ral law."
Biden, D-Del., the committee's chairman.
White House congressional liaison
Judge Thomas replied that he
President Bush nominated Judge Thomas to
Fred McClure and former White
was attempting to use a conserva-
succeed Justice Thurgood Marshall, who is retir-
House Chief of Staff Ken Duber-
tive role model's words to inspire
ing from the Supreme Court because of poor
stein, who have helped prepare
others to pursue the aggressive en-
health. Judge Thomas, an avowed conservative,
Judge Thomas for the Senate hear-
forcement of civil rights laws. He
has expressed views that differ sharply from
ings.
denied that he was endorsing the
those of his liberal predecessor and would be
Judge Thomas was introduced to
Lehrman article's premise that
most likely to strengthen the court's conserva-
the committee by the six senators
abortion rights are unconstitu-
from the three states he has called
tional.
Continued from Page 1A.
home: Georgia, Missouri and Vir-
He insisted that his interest in
tive majority.
ginia. Three of the senators are
natural law was that of a policy-
Judge Thomas will resume his
among the Southern Democrats
maker in a political theory, not as a
testimony Wednesday. The hear-
considered key to his confirmation.
judge looking for a legal philoso-
ings are expected to last at least a
The nominee spoke deliberately
phy.
week: and will include testimony
in a deep baritone. He smiled rarely
"I did not feel that natural
from several of the dozens of inter-
and appeared nervous, perspiring
rights, or natural law, has a role or
est groups that have taken a posi-
and often resting his chin in his left
has a basis in constitutional adjudi-
tion on the nomination.
hand.
cation," he said.
Opponents promptly accused the
One of the few light moments oc-
He also attempted to distance
43-year-old federal appeals court
curred early on when he responded
himself from a 1986 White House
judge of trying to revise the lengthy
to a question about his age by say-
study group's report that advocated
public record he accumulated dur-
ing, "I've aged over the last 10
replacing members of the Supreme
ing eight years as chairman of the
weeks."
Court who supported the 1973 Roe
U.S. Equal Employment Opportunity
The remarks from committee
VS. Wade decision, which legalized
Commission.
members were mostly non-confron-
abortion.
Sen. Howard Metzenbaum, D-
tational and uniformly admiring of
Although he acknowledged that
Ohio, said the nominee's continued
Judge Thomas' life story. Still, sev-
he was a part of the study group,
refusal to answer questions about
eral Democrats noted that they
Judge Thomas said he read only his
abortion rights could very well be
would press him closely on issues
portion on problems of low-income
fatal. (He said Judge Thomas could
such as privacy rights.
families. "To this day, I have not
expect further inquiries on privacy
Sen. Patrick Leahy, D-Vt., said he
read that report," he said.
issues.
was troubled by several opinions
Mr. Hatch contended that Judge
The nominee's supporters in-
that the nominee had expressed in
Thomas' positions were being dis-
sisted that his statements were con-
his writings and speeches.
torted. He said after the hearing re-
sistent and that he had revealed
"Your words strike me as the
cessed that Judge Thomas had been
himself to committee members as a
views of a combative, hard-line ide-
forthcoming.
mainstream thinker.
ologue," Mr. Leahy said, referring
"I think he hit a bunch of home-
!"In my view, it was a 20-run first
to a statement chiding Congress.
run balls, and I don't think anybody
inning, but the game is not over,"
"The last thing I seek in a Supreme
said Sen. John Danforth, R-Mo., a
should pay attention to the argu-
Court justice is ideology."
primary sponsor for Judge Thomas.
ment he's done a judicial conver-
Republican committee members
"I think that what people heard
sion," Mr. Hatch told reporters.
dismissed the ideological criticisms
"The fact of the matter is, this is
today has to set the minds of the
of Judge Thomas, insisting that he
Seriate and the American people at
a man who believes the way he does
had demonstrated that he would be
rest," Mr. Danforth said outside the
very strongly, and, I think, will do
fair-minded.
hearing room. "This is not some-
what's right."
"Those who have known Judge
body who wants to turn the clock
back.".
CHICAGO SUN-TIMES
SEPTEMBER 11, 1991
A6
Thomas backs privacy
rights, mum on abortion
By Michael Briggs
Washington Bureau / Chicago Sun-Times
WASHINGTON-Supreme Court
nominee Clarence Thomas told the
Senate Judiciary Committee on Tues-
day that privacy rights are protected
by the Constitution, but he refused to
be pinned down on whether a woman's
decision to have an abortion is pro-
tected.
Thomas also backed away from past
statements about "natural law"-a
kind of "higher law" that some argue
justifies a ban on abortion. His com-
ments on natural law, he said, were
merely the musings of a "part-time
political theorist."
And Thomas said he never has read
parts of a 1986 White House report
that he helped compile, which advo-
cated overturing Roe VS. Wade, the
landmark 1973 abortion-rights ruling.
Thomas said he contributed only a
section, on low-income families, to it.
"To this day, I have not read that
report," he said.
On the first day of his confirmation
hearings, Thomas "was running, if not
sprinting, away from his record," said
Ralph G. Neas, executive director of
the Leadership Conference on Civil
Associated Press
Rights, a coalition of minority, labor
Supreme Court nominee Clarence Thomas is escorted into his confirma-
and women's groups opposed to Tho-
tion hearing Tuesday by Sen. Strom Thurmond (R-S.C.), second from right.
mas's confirmation.
At left is Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.); at
His most ardent supporter, Sen.
right is Sen John C. Danforth (R-Mo.)
John C. Danforth (R-Mo.), said
Thomas did not retreat from past
stands. "Clarence Thomas has put in
perspective his views on natural law;
Basic battleground: 'natural law'
that it is not some scary thing, that he
is not going to the Supreme Court
Reuters
these are life, liberty and the pur-
with an agenda."
WASHINGTON-One topic
suit of happiness."
Thomas brought up Roe VS. Wade,
arose immediately Tuesday at Cla-
Critics say Thomas' views on nat-
but only to say he wouldn't talk about
rence Thomas' Supreme Court
ural law are based on religious be-
the abortion ruling directly. "I do not
nomination hearing, otherwise ex-
liefs and put him outside the main-
think that at this time that I could
pected to be dominated by such
stream of U.S. law. They fear that
maintain my impartiality as a member
issues as civil rights and abortion.
he might draw on natural law to
of the judiciary and comment on that
It is Thomas' views on "natural
justify a vote to abolish abortion
specific case," he said.
law"-the belief that individuals
rights, for example, by concluding
He adopted the practice of previous
have certain basic rights above
fetuses have a "right to life."
nominees, who avoided talking about
those granted by written laws.
Thomas and his supporters say
specific issues that might come before
The idea is identified with the
his philosophy, on the contrary,
the Supreme Court, and replied in
13th century Roman Catholic theo-
stems from the mainstream of legal
generalities when asked if the Consti-
logian Thomas Aquinas.
thought.
tuion protects the right of women to
Those who support natural law
Sen. Joseph R. Biden Jr. (D-
end their pregnancies. "My view is
point to the first section of the U.S.
Del.), the chairman of the Senate
that there is a right to privacy in the
Declaration of Independence for
Judiciary Committee conducting
14th Amendment," he said. "The Su-
support.
the confirmation hearings, said
preme Court has made clear that the
It states: "We hold these truths
clarification of Thomas' views on
issue of marital privacy is protected,
to be self-evident, that all men are
natural law was the most important
that the state cannot infringe on that
created equal, that they are en-
question before the committee in
without a compelling interest."
dowed by their creator with certain
judging his fitness to sit on the
Outside the hearing room, Kate Mi-
unalienable rights, that among
Supreme Court.
chelman, executive director of the Na-
tional Abortion Rights Action League,
called Thomas' statment insignificant.
"They all acknowledge some right to
"My interest in exploring natural law
their own accepted at least the con-
privacy," she said of even the most
and natural rights was purely in the
cept of natural rights, that they would
conservative Supreme Court justices.
context of political theory. I pursued
be more apt to accept that concept as
Thomas was pressed on abortion
that on a part-time basis."
an underlying principle for being more
and natural law by Sen. Joseph R.
Thomas said his interest in natural
aggressive on civil rights."
Biden Jr. (D-Del.), the committee
law sprang from his studies of slavery
Biden was unconvinced by Thomas'
chairman.
and the abolition movement. He said
attempt to distance himself from nat-
Biden asked about a 1987 speech in
he was attempting in the 1987 speech
ural law. The chairman said he would
which Thomas praised an article that
to make a conservative audience more
catalogue other instances when Thom-
said fetuses have an "inalienable right
sensitive to civil rights concerns by
as linked the concept of "natural law"
to life" and called Roe VS. Wade "a
bringing up the "natural rights" argu-
to specific court cases and constitu-
'coup' against the Constitution."
ment made by Lewis E. Lehrman,
tional issues. "There's pages of them,"
Thomas also called the article a
"one of their own," in an article on
Biden said.
"splendid example of applying natural
abortion in the American Spectator
Thomas did not touch on sensitive
law."
magazine. Lehrman is a conservative
legal issues in his opening statement
Thomas said he had dabbled in the
businessman who ran for governor of
to the committee, an emotional re-
theory "part time" and was interested
New York in 1982.
countig of his upbringing in the segre-
in it as a "political philosophy," not a
"I was speaking in the Lew Lehr-
gated South. He was educated at seg-
way to decide cases. "I don't see a role
man Auditorium of the Heritage
regated parochial schools and reared
for the use of natural law in constitu-
Foundation," Thomas said. "I thought
by his grandparents because his moth-
tional adjudication," Thomas said.
that, if I demonstrated that one of
er could not support her children.
61
Chicago Tribune
September 11, 1991
3
By Mike Royto
He would also say: "Always take care of your
Grandpa followed
brushes."
Few children get that advice from their
grandfathers today. Modern grandfathers are
his natural laws
more likely to say: "Why don't you see what's on
the other channel?" or "Can't you turn that
music down?" or "Did I tell you I shot an 89
with a double bogey on the last hole?" There
Listening to Judge Clarence Thomas talk so
probably isn't a child in America whose grand-
movingly about the old-fashioned values he
father says: "Always take care of your brushes."
learned from his hard-working grandfather, I
He said that because he was a professional
thought back to my childhood and my grand-
painter. Not pictures, houses. Fine brushes, in all
father and some of the things he taught me.
sizes, with wood handles and animal-hair fibers,
I couldn't have been more than 5 or 6 years
were costly. And the paint of those days couldn't
old when he swiveled on his bar stool and said:
be washed off with water. The brushes had to be
"Listen to me. Never trust a Russian."
soaked and washed in some chemical that today's
Because of my youth, I didn't know what a
youths would sniff.
Russian was. So I asked him.
"If you don't take care of your brushes, you
He said: "A Russian is no good."
won't get work and you'll be a bum. You don't
I asked him why a Russian was no good.
want to be like the Swede."
He said: "Never mind. Drink your ginger ale."
As he later explained, when I was old enough
But I never forgot his admonition. Especially
to understand, the Swede had been his regular
since he told me the same thing every Saturday,
partner. But the Swede drank while working. He
when he would come over and take me for a
said it immunized him against the fumes from
walk.
the paint. So he often became so immunized that
We never walked far. Only one block up Wol-
he failed to take care of his brushes. Then he had
cott Avenue to the nearest tavern on Division
to buy new brushes and had less profit, and his
Street, which in those days was known as Polish
wife rebuked him. And this caused him to brood,
Broadway.
as Swedes are inclined to do, and he drank even
In two or three years, I knew what a Russian
more while working. And it became a vicious
was. And that confused me because World War
circle, ruined brushes, paint dripping in his eyes
II had begun and the Russians were our heroic
and finally disaster. He staggered off a scaffold
allies.
and broke both legs.
When I asked him about that, he shook his
Being a true friend, my grandfather went to the
head and said: "Never trust a Russian."
bed-ridden Swede's house and said: "You're out
When I asked my mother why my grandfather
of work and you need money. Here, take this."
said that, she explained: "He doesn't like Rus-
And he put $250 cash in the Swede's hand, a
sians."
hefty sum in those days, and bought the Swede's
I asked her why, and she said: "He doesn't trust
car, for which the Swede had paid $400 three
them."
months earlier.
Then the war ended, and the Russians became
"I wouldn't have done that for a Russian," my
the Evil Empire, and it turned out my grand-
grandfather said.
father had been right. At least for almost 50
And that taught me about private enterprise
years. And who can be sure about tomorrow?
and the free-market system.
It was only one of many valuable things he
Anyway, these memories came back as I lis-
taught me.
tened to Judge Thomas remember his grand-
As he sat in the tavern drinking his Saturday
father.
steins of beer, he would always say: "Tell your
And when Sen. Ted Kennedy began grilling
mother we went to Wicker Park."
Judge Thomas on his social views, I thought
The first time he said that I asked him why.
about what my grandfather might have said to
He said: "Because she told me to take you to
the senator.
Wicker Park."
Probably something like: "Stay off scaffolds."
I asked him why we didn't go to Wicker Park.
"Because I don't like Wicker Park. Too many
flies and bugs. This is better."
So I would tell my mother that we had gone to
Wicker Park, and that seemed to please her. And
not going to Wicker Park pleased my grand-
father. It also pleased me since I preferred drink-
ing ginger ale in the cool bar. That meant that all
three of us were pleased. But if we had gone to
Wicker Park, my grandfather and I wouldn't have
been as pleased. So I learned that freedom of
choice and movement is what makes people
happy. And I didn't like bugs, either.
Chicago Tribune
62
September 11, 1991
Thomas supports a right to privacy
Reply surprises Democrats;
judge won't discuss abortion
as "natural law," a theory holding
he spent fielding sēnators'
By Linda P. Campbell
that individuals have some rights
questions while his wife, Virginia;
Chicago Tribune
beyond what is written in statutes
his mother, Leola Williams; his
WASHINGTON-Supreme
or constitutions.
sister, Emma Mae Martin, and his
Court nominee Clarence Thom-
Abortion-rights groups argue
son, Jamal, watched in the Senate
as said Tuesday he believes the
that Thomas' repeated references
Caucus Room.
Constitution protects a right to
to natural law in speeches and ar-
After being introduced by six
marital privacy but declined to
ticles indicate that he would cut
senators, including Danforth,
say whether that includes a
back on privacy and abortion
Thomas delivered a moving ac-
woman's right to choose abor-
rights, particularly since he once
count of his rise from being a
tion.
praised an article by conservative
poor child catching fiddler crabs
The answer, coming on the
writer Lewis Lehrman saying that
in the rural Georgia marshes to
first day of confirmation
natural law protects a fetus' right
being nominated for the high
hearings before the Senate Judi-
to life.
court. His voice broke noticeably
ciary Committee, surprised De-
Thomas testified that he dabbled
when he talked of the "crucible of
mocrats on the panel. But it did
in natural-law philosophy as a
unfairness" faced by his
little to stem the opposition
"political theory" while he was
grandparents.
from women's and civil rights
chairman of the Equal Employ-
"I watched as my grandfather
groups fighting Thomas' confir-
ment Opportunity Commission
was called 'boy,' he said. "I
mation to replace retiring Jus-
but said it should not play a role
watched as my grandmother suf-
tice Thurgood Marshall.
in constitutional interpretation.
fered the indignity of being denied
"There is a right to privacy in
He said he disagreed with
the use of a bathroom, but above
the 14th Amendment,' Thomas
Lehrman's article but used it to
it all they remained fair and de-
said during questioning by com-
make an argument about civil
cent people.
mittee Chairman Joseph Biden
rights more palatable to a conserv-
ative audience.
"They never lost sight of a bet-
(D-Del.). "I think that the Su-
ter tomorrow," Thomas contin-
preme Court has made clear that
"I thought that, if I demonstrat-
ued. "I have followed in their foo-
the issue of marital privacy is
ed that one of their own accepted
protected."
at least the concept of natural
tsteps and I have always tried to
But, as for Roe VS. Wade, the
rights, that they would be more
give back."
He also acknowledged the strug-
1973 decision extending privacy
apt to accept that concept as an
gle of civil rights leaders, in-
rights to abortion, Thomas said,
underlying principle for being
cluding Justice Marshall. "Only
"I do not think at this time I
more aggressive on civil rights,'
by standing on their shoulders
could maintain my impartiality
Thomas said.
could I be here," he said.
as a member of the judiciary
He also distanced himself from
Democrats on the committee
and comment on that specific
a Reagan administration report
tried to deflect attention from
case."
critical of the Supreme Court's
Thomas' background, applauding
privacy rulings over the last 20
his accomplishments but saying
years, including a Supreme Court
Later he said, referring to
they wanted to focus on his re-
decision striking down a city ordi-
abortion, "I think it's inappro-
cord.
nance that prohibited "non-tradi-
priate for any judge who is
tional" families from sharing the
In 2 1/2 hours of opening
worth his or her salt to prejudge
same house.
statements, senators made clear
any issue or sit on a case in
"The notion of family is one of
they intended to press Thomas on
which he or she has such strong
the most personal and most pri-
privacy and other issues as the
views that he or she cannot be
vate relationships that we have in
hearings continue through this
impartial."
our country," said Thomas, who
week.
After the hearing, Sen. Howell
was raised by his grandparents. "I
Sen. Patrick Leahy (D-Vt.)
Heflin (D-Ala.), a Judiciary
could easily have been zoned out
complained that "the Senate and
Committee member, said Thom-
of my neighborhood should ap-
the nation have been frustrated by
as' answer "rather surprised us."
proaches like that take place."
polite, albeit respectful, stonewal-
Critics of Thomas have predict-
After the hearing, civil rights
ling" on abortion.
ed he would vote to overturn
leaders opposing Thomas said he
Sen. Paul Simon (D-III.) said
Roe because he has criticized it
had disavowed his previous
Thomas "has the basic ability to
and a previous decision,
statements on natural law and
make a good justice" and would
Griswold vs. Connecticut, on
therefore undermined his credibil-
bring diversity to the court. But
which the right to privacy is
ity.
Simon questioned whether Thom-
based.
"There's no question that that
as would add to the imbalance of
Thomas' answer was almost
was the earliest 'confirmation
a court that is "shifting from its
identical to statements given a
conversion' we've witnessed," said
role of being the champion of the
year ago by David Souter, who
Ralph Neas, executive director of
less fortunate."
replaced retired Justice William
the Leadership Conference on
However, Sen. Orrin Hatch (R-
Brennan on the high court. But
Civil Rights, an umbrella organi-
Utah), the nominee's staunchest
it contrasted with the last highly
zation of civil rights groups.
defender on the committee, said
controversial Supreme Court
But Sen. John Danforth (R-
Thomas' critics "wish to punish
nominee, Robert Bork, who was
Mo.), Thomas' key supporter,
him" for opposing affirmative ac-
defeated by the Senate in 1987
said he believed Thomas had al-
tion programs involving racial
partly because he rejected the
layed some concerns raised about
preferences.
notion that the Constitution
him. "I really believe Clarence
protects rights such as privacy
Thomas has put in perspective his
During his questioning, Biden
even though it does not spell
view of natural law, and it is not
noted Thomas' youth, saying he
could be writing decisions well
them out.
Much of Tuesday's question-
a scaring thing. He is not going to
into the next century, and asked
Thomas how old he was.
ing focused on a concept known
the Supreme Court with an agen-
da," Danforth said.
"I've aged over the last 10
See Thomas, pg. 14
weeks" since the nomination, said
Thomas, dressed in a dark gray
Thomas to laughter from the
suit, white shirt and red tie, ap-
peared calm during the 3½ hours
packed hearing room, "but [I'm]
43."
63
The Hartford Courant
SEPTEMBER 11, 1991
A
Thomas sees
privacy right
guaranteed
Court nominee makes
no comment on abortion
:
By MIRANDA S. SPIVACK
judge and comment on a specific
Courant Staff Writer
case."
Thomas was attempting to quell
WASHINGTON - Supreme Court
concern that he would use his role as
nominee Clarence Thomas, distanc-
a high court justice to advocate
ing himself from his most controver-
"natural law" - the idea that there
sial writings, endorsed a constitu-
are rights outside the Constitution
tional right of privacy Tuesday but
that are given to people by a higher
would not say how far it extends.
order or deity. He has written and
"My view is that there is a right to
spoken extensively about his interest
privacy in the 14th Amendment,"
in natural law.
said the 43-year-old appeals court
Thomas, nominated by President
judge and Yale Law School graduate
Bush to replace Thurgood Marshall,
on the first day of his Senate confir-
the first black justice, took the wit-
mation hearings.
ness stand in mid-afternoon. Panel
"I think that the Supreme Court
members had spent the morning out-
has made clear that the issue of
lining their hopes and concerns
about his nomination.
marital privacy is protected
The
Supreme Court has found a fun-
Thomas was introduced by sever-
damental interest in a woman's right
al senators, but the most compelling
to terminate a pregnancy," Thomas
statements were made by Sen. John
told the 14-member Senate Judicia-
C. Danforth, the Missouri Republi-
ry Committee.
can for whom Thomas had worked.
Danforth, considered a moderate
But when pressed by committee
in the Senate and one of its best
Chairman Joseph R. Biden Jr., D-
conciliators, said Thomas is bright,
Del., Thomas refused to say which
unpretentious and would defy all
privacy rights, such as abortion,
predictions. "He will never become
should be maintained.
a sure vote for any group of justices
"I do not think at this time that I
could maintain my impartiality as a
Please see Thomas, Page A14
Thomas acknowledges right to privacy, but will not discuss abortion
Continued from Page 1
uses natural law for constitutional
adjudication or a moral code."
on the court," Danforth said.
He
Excerpts from Clarence Thomas' statement
Before Thomas spoke, committee
is his own person."
members outlined their views.
Thomas' rise from abject poverty
"Finding out what you mean when
in Pin Point, Ga., to Yale and ulti-
M
Γ. Chairman, Senator
all their belongings In two grocery
would not be here today. It would
you say you would apply a natural-
mately to his high court nomination
Thurmond, members of
bags. Our grandparents were two
have been well-chronicled. But his
be unimaginable. Only by stand-
law philosophy to the Constitution is,
the committee. I am hum-
great and wonderful people who
ing on their shoulders could I be
in my view, the most important task
own rendition of the story during his
bled and honored to have been
loved us dearly. I wish they were
here. At each turn in my life, each
of these hearings," Biden said.
opening statement provided the
nominated by President Bush to
sitting here today, sitting here so
obstacle confronted, each fork in
Kennedy said he was worried
most poignant moments of the day.
be an associate justice of the Su-
that they could see that all their
the road, someone came along to
about Thomas' views of efforts to
Flanked by his mother, sister, wife
preme Court of the United States
efforts, their hard work were not
help
end discrimination against women
and son, Thomas appeared at times
in vain, and so that they could see
Justice Marshall, whose seat
and minorities, as well as his outlook
overcome with emotion as he spoke
Much has been written about
that hard work and strong values
I've been nominated fill, is one
on the role of government in ensur-
of his childhood. He described the
my family and me over the past 10
can make for a better life
of those who had the courage and
Ing workplace safety and the rote or
legacy of his grandparents, who
weeks. Through all that has hap-
I attended segregated parochial
the intellect.
Congress as a check against the ex-
helped raise him when his mother
pened throughout our lives and
schools and later attended a sem-
The civil rights movement -
ecutive and judicial branches.
could not afford to.
through all adversity, we've
inary near Savannah. The nuns
Reverend Martin Luther King and
Most of the senators' opening
"Their sense of fairness was mold-
grown closer and our love for each
gave us hope and belief in our-
the SCLC, Roy Wilkins and the
statements appeared to divide along
ed in the crucible of unfairness. I
other has grown stronger and
selves when society didn't. They
NAACP, Whitney Young and the
party lines, although one Republi-
watched as my grandfather was
deeper. I hope these hearings will
reinforced the importance of reli-
Urban League, Fannie Lou
can, Arlen Specter of Pennsylvania,
called 'boy.' I watched as my grand-
glous beliefs in our personal lives.
said he was worried that some of
help to show more clearly who this
Hamer, Rosa Parks and Dorothy
mother suffered the indignity of be-
person Clarence Thomas is and
Sister Mary Virgilius, my eighth-
Height. They changed society and
Thomas' writings suggested he fa-
ing denied the use of a bathroom."
what really makes me tick.
grade teacher and the other nuns
vored an activist role for the Su-
made it reach out and affirma-
But throughout their travails in
My earliest memories, as allud-
were unyielding in their expecta-
tively help. I have benefited great-
preme Court as a kind of "super
the segregated South, Thomas said,
ed to earlier, are those of Pin-
tions that we use all of our talents,
ly from their efforts. But for
legislature trying to establish poli-
his grandparents remained hard-
point, Georgia, a life far removed
no matter what the rest of the
them, there would have been no
cy."
working and conscientious, and in-
in space and time from this room,
world said or did.
road to travel
Thomas won praise from Sen.
stilled those values in him.
this day and this moment
After high school, I left Savan-
It is my hope that when these
Strom Thurmond, R-S.C., the top Re-
"It is my hope, when these hear-
In 1955, my brother and I went
nah and attended Immaculate
hearings are completed, that this
publican on the Judiciary Commit-
ings are done, that this committee
to live with my mother in Savan-
Conception Seminary, then Holy
committee will conclude that I am
tee, who called him a true believer in
will conclude that I am an honest,
nah. We lived in one room in a
Cross College
an honest, decent, fair person.
"civil rights of the individual and a
decent and fair person."
tenement, we shared a kitchen
I attended Yale Law School.
If confirmed by the Senate, I
commitment to the principles of
Biden quickly responded that
with other tenants, and we had a
Yale had opened its doors, its
pledge that I will preserve and
fairness and equality
An exami-
Thomas' integrity would not be the
common bathroom in the back-
ery two weeks as a maid, not
heart, its conscience to recruit
issue. But in the weeks before the
protect our Constitution and carry
nation of the professional record of
yard which was unworkable and
enough to take care of us, so she
and admit minority students. I
with me the values of my heritage,
Judge Thomas provides no valid rea-
confirmation hearings, several civil
unusable. It was hard, but it was
arranged for us to live with our
benefited from this effort
fairness, integrity, open minded-
son to believe he would seek to di-
rights and abortion rights groups ex-
all we had and all there was.
grandparents later in 1955. Imag-
But for the efforts of SO many
ness, honesty and hard work.
minish the rights of any American
pressed misgivings about Thomas'
Our mother only earned $20 ev-
ine, if you will, two little boys with
others who have gone before me, I
Thank you, Mr. Chairman.
citizen."
nomination, stressing that his exten-
Sen. Orrin G. Hatch, R-Utah, said
sive writings about natural law con-
Thomas is a man "of fierce indepen-
fliet with his assertions that he has
tion, appeared to be trying to defuse
ested in political theory."
the natural-law background of the
an open mind as a judge.
used natural law as a basis for oppos-
dence. When he is confirmed, he will
the liberals' concerns swiftly. He ex-
"These were some sort of philo-
Constitution "provides the only firm
ing abortion.
be nobody's man but his own."
Thomas' opponents suggest he is
plained his interest in natural law as
sophic musings?" Biden asked.
basis for a just, wise and constitu-
Thomas had described the article
rigidly anti-abortion and against
a mere intellectual exercise that has
Thomas is expected to testify at
"That's exactly what it was,"
tional decision."
equal rights.
in a speech as a "splendid" example
no place in judicial decision-making.
least two more days. After his testi-
Thomas said.
In a discussion with Sen. Edward
Thomas, who headed the Equal
"I don't see a role for the use of
of applying natural law.
mony, the committee will hear from
In a 1988 article in the Harvard
M. Kennedy, D-Mass., Thomas said
In a carefully worded reply,
the American Bar Association and
Employment Opportunity Commis-
natural law in constitutional adjudi-
Journal of Law and Public Policy,
he did not endorse a widely circulat-
sion during the Reagan administra-
Thomas told Kennedy he disagreed
cation," Thomas said. "I was inter-
various advocacy groups favoring
among other articles, Thomas said
ed article by Lewis Lehrman that
with the article "to the extent that he
and opposing Thomas' nomination.
65
The Miami Herald
SEPTEMBER 11, 1991
AI
Thomas skirts abortion issue
Recounts
THOMAS, FROM 1A
Thomas said his praise of Lehr-
Court nomination of Robert Bork
man's essay was not an endorse-
ment of Lehrman's anti-abortion
childhood
four years ago.
Still. it was early in the hearings
views, but an attempt to convince
and, in the view of most observers,
conservatives that strong civil
Thomas. 43. remained likely to win
rights enforcement protects the
Senate approval.
natural right of human equality.
of racism,
Committee members concen-
"I thought that if I demonstrated
trated on Thomas' controversial
that one of their own accepted at
views of privacy, abortion and natu-
least the concept of natural rights,
ral law, a flexible theory asserting
that they would be more apt to
poverty
that certain rights are inherent in
accept that concept as an underlying
human beings and exist outside the
principle for being more aggressive
written law.
on civil rights." Thomas said.
A TOUGH JOB INTERVIEW, 11A
Thomas told Biden that "there is
And he added: "My interest in
HEARING EXCERPTS, 11A
a right to privacy in the Fourteenth
Amendment. I think that the
By AARON EPSTEIN
Supreme Court has made it clear
Herald Washington Bureau
that marital privacy is protected
natural rights is strictly from the
WASHINGTON - Supreme
and in the case of Roe VS.
political theory point of view.
I
Court nominee Clarence Thomas
Wade, has found an interest in the
do not think natural law or natural
broke a two-month silence Tuesday
woman's right to terminate a
rights has a proper use in constitu-
by poignantly recalling the pain of
pregnancy.'
tional adjudication."
poverty and racism, saying he had
But Thomas, a federal appeals
That last statement appeared to
not made up his mind about abor-
judge, added: "I do not think that at
contradict several public statements
tion, and distancing himself from the
this time that I could maintain my
made by Thomas in recent years.
controversial theory of natural law.
impartiality as a member of the judi-
For instance, in a 1988 speech, he
At one point in the opening of his
ciary and comment on that specific
said: "The higher law background of
Senate confirmation hearings,
case."
the American Constitution, whether
Thomas' deep, firm voice broke as
explicitly appealed to or not, pro-
he remembered: "I watched as my
Souter-like statement
vides the only firm basis for a just,
grandfather was called 'boy.' I
Later, when Sen. Orrin Hatch,
wise and constitutional decision."
watched as my grandmother suf-
R-Utah, asked him whether he had
fered the indignity of being denied
an opinion on abortion rights,
'Changed' tune
the use of a bathroom."
Thomas replied: "I think it inappro-
"He's changed his tune," said
It was "a moving statement," said
priate for any judge worth his salt to
Nan Aron, director of the liberal
committee Chairman Joseph Biden,
prejudge any issue."
Alliance for Justice, which opposes
D-Del.
It was a statement that echoed
the Thomas nomination. "He has
But if Thomas' powerful emo-
those of David Souter, President
completely disavowed his associa-
tional recollections impressed com-
Bush's easily confirmed 1990 nomi-
tion with natural law. It's unbeliev-
mittee members and a nationwide
nee to the Supreme Court.
able."
television audience, his subsequent
Thomas' views of privacy and
Thomas also drew criticism from
intellectual efforts to dispel charges
abortion are critical because the
his liberal critics for disassociating
that he is a foe of abortion rights and
Supreme Court is closely divided on
himself from a 1986 White House
an advocate of natural law were less
abortion rights, has narrowed the
report on the family, which criti-
successful.
meaning of Roe VS. Wade in recent
cized several Supreme Court deci-
In fact, they appeared to have
years and could decide the constitu-
sions expanding the right of privacy.
raised a new issue among his critics
tionality of strict state restrictions
Thomas was a member of the
- his credibility.
on abortion as early as next year.
"working group" that issued the
Biden, who interrogated Thomas
In a June 1987 speech to the Heri-
report but he said his only interest
for a half-hour, said he was not satis-
tage Foundation, a conservative
in it was a section on low-income
fied with the nominee's responses.
research organization, Thomas
families.
"Quite frankly," he told the nomi-
praised an essay by a foundation
"To this day, I have not read that
nee, "at this point, you leave me
trustee, Lewis Lehrman, as "a
report," Thomas said.
with more questions than answers."
splendid example of applying natural
He said, however, that he did not
"I thought he really hurt himself
law."
agree with the report's attack on a
by running away from his record,"
Supreme Court ruling that struck
said Ralph Neas, executive director
Controversial essay
down an East Cleveland, Ohio, zon-
of a coalition of more than 150 anti-
The essay. titled The Declaration
ing law that prevented a grand-
Thomas civil rights groups and a
of Independence and the Right to
mother from living with two of her
leading lobbyist in the successful
Life, argued that the right to abor-
grandchildren.
campaign against the Supreme
tion established in Roe VS. Wade
"If I had known that that section
PLEASESEE THOMAS, 11A
was "a spurious right born of judicial
was in the report before it became
supremacy with not a single trace of
final, of course I would have
lawful authority
in the actual
expressed my concerns. That
text or history of the Constitution
(attack on the East Cleveland ruling]
itself."
would have had direct implications
on my own family
I could easily
have been zoned out of my neighbor-
hood.
66
The Miami Herald
SEPTEMBER 11, 1991
Au
Hearing a tough job
interview for Thomas
By CHRISTOPHER SCANLAN
sob at the memory of watching "as
Herald Washington Bureau
my grandfather was called 'boy'
WASHINGTON - Imagine a job
[and] as my grandmother suffered
interview that lasts days. Picture
the indignity of being denied the use
one that takes place under the glare
of a bathroom."
of television lights and is beamed
instantly to an audience of millions.
His family - wife, mother, sister
Conjure one
and son - lined up behind him but a
NEWS
that features
more recent - and perhaps more
not one hard-
important influence sat in the same
ANALYSIS
eyed ques-
row: Kenneth Duberstein, the for-
tioner eager
mer White House aide who signed
on to coach him.
to plumb your talents but 14 inquisi-
tors ready to pounce on your every
Thomas, who has been opposed
word.
You've just put yourself in Clar-
by most civil rights organizations,
ence Thomas' shoes.
paid politically correct homage to
After two months of partisan bat-
civil rights legends, including Thur-
tling, endless speeches and counter
good Marshall, the liberal black jus-
speeches over President Bush's
tice he hopes to replace, and to Roy
nominee to the U.S. Supreme
Wilkins of the NAACP, which has
Court, it all comes down to this: a
opposed his confirmation. And, he
man sitting alone before a micro-
assured the senators, he cares about
phone pleading his case for a job.
"the little guy."
Surrounded by his family, friends
and his political foes, Thomas took a
He concluded his 10-minute open-
seat Tuesday morning in the his-
ing statement with a naked pitch:
toric U.S. Senate Caucus Room for
"It is my hope that when these hear-
what has to be the toughest job
ings are completed that this com-
interview in America.
"If you are confirmed this will be
mittee will conclude that I am an
the only such conversation the
American people will ever have with
honest. decent. fair person."
you," noted Sen. Herb Kohl, a Wis-
And no sooner had Thomas given
consin Democrat who sits on the
his first answers about the politi-
Judiciary Committee that will judge
cally charged abortion issue than
Thomas' fitness.
supporters of abortion rights began
Like any savvy applicant. Thomas
muttering in the audience. Faye
led with his strengths.
Wattleton of Planned Parenthood
In a low deep voice, he delivered
and Kate Michelman of the National
what may be the most important
Abortions Rights Action League
speech of his life; a brief but affect-
whispered furiously. Moments
ing rendition of the inspirational tale
later, the first skirmishes began as
of his boyhood rise from the world of
opponents darted outside the Cau-
Jim Crow segregation in Pin Point,
Ga., to the highest ranks of the fed-
eral judiciary.
cus Room, trailed by reporters.
"He goes back to that grandfather
story," said Michelman, who con-
Thomas recalled the grandpar-
ceded that the account of his
ents who taught him "a sense of
upbringing is "very powerful."
fairness [that] was molded in a cruci-
But, she fumed, "his responses
ble of unfairness."
today are totally contradictory to
Given the stakes, the tension and
the record."
the standing-room only crowd in the
Inside the hearing room, Sen.
marble-columned, high-ceilinged
Joseph Biden, D-Del., finished his
Caucus Room was understandable.
first round of questions equally dis-
satisfied. "You've left me with more
If Thomas felt the drama he kept
it well-masked.
questions than answers," he told
Thomas.
But a painful memory pierced his
impassive veil for one brief moment.
His voice broke as he choked back a
67
The Detroit News
SEPTEMBER 11, 1991
A12
Joe Biden's Little Confession
On the first day of Clarence Thomas's confirma-
further justification. Or perhaps they wish to quar-
tion hearings for the Supreme Court, Democratic
rel with the American civil rights movement of the
members of the Senate Judiciary Committee made
1960s, which frequently justified its civil disobedi-
clear they consider his belief in "natural law" to be
ence in terms of the need to realize a higher law.
a key sticking point. They say belief in a higher law
could lead to "radical" decisions that are out of the
Judge Thomas has argued, correctly we think,
mainstream of American thinking.
that just because he believes in a higher law doesn't
What they really object to, however, is that
mean he thinks judges can impose their views
Judge Thomas' views of natural law may differ
willy-nilly. Indeed, precisely because there is so
from their own. Sen. Joseph Biden of Delaware
much disagreement on what higher law is, he has
made that clear when he confessed that he, too, be-
emphasized that settling such disputes should be
lieves that there is a higher law than even the U.S.
left to the democratic process. Judges should exer-
Constitution.
cise great restraint in dealing with essentially mor-
In doing so, he exposed a basic hypocrisy in the
al, as opposed to legal, questions.
attack on Judge Thomas. For much of the 1960s
The latitude of judges to substitute their judg-
and 1970s, the same Democrats registered no com-
ment for that of elected legislatures is a fair ques-
plaints when a liberal majority on the court regu-
tion. Indeed, a straight-up debate on that issue in
larly substituted its own view of what was right and
the context of the Thomas nomination would be
wrong for what the Constitution had to say. Now
welcome.
that the shoe is on the other foot, natural law is
Liberals hate to raise the subject directly, how-
suddenly found to be a "radical" notion.
ever, for fear that their basic mistrust of the people
Presumably those who object to Judge Thomas
will become apparent. What they have been unable
would also object to Thomas Jefferson's formula-
to obtain at the polls they have tried to obtain
tion in the Declaration of Independence that cer-
through the courts. So they seek to scare the public
tain truths, such as the fact that all men are created
with vague chatter about strange-sounding con-
equal and are entitled to life, liberty and the pur-
cepts like natural law. Yesterday's confession by
suit of happiness, were "self-evident," needing no
Joe Biden should make that a little tougher to do.
68
The Detroit News
SEPTEMBER 11, 1991
AI
In Senate minefield,
nominee sidesteps
loaded questions
WASHINGTON - A calm and controlled
In truth, Thomas didn't over-
The nominee affirmed that there
Clarence Thomas tiptoed through the minefield
whelm the committee. But he ad-
is a right to privacy embedded in the
of his first day on the Senate witness stand
vanced his cause with a moving if
Constitution - the legal underpin-
without touching off any explosion that could
brief recounting of his early life, and
ning for the right to abortion enun-
blow up his chance to sit on the Supreme Court.
his calm, low-keyed responses to
ciated in the Supreme Court's land-
questions both hostile and friendly.
Deftly sidestepping the
mark Roe VS Wade decision - but he
In an effective opening statement
most dangerous questions
ducked questions on how he would
that ran barely 12 minutes, the nomi-
posed by liberal Democrats
rule on any abortion cases before the
nee spoke movingly of growing up
and capitalizing on support
court.
poor and black in the segregated
from helpful Republicans,
South. With an emotional catch in
A judge must "never prejudge any
the 43-year-old jurist effec-
issue" before hearing the arguments
his rich baritone voice, Thomas told
tively used humility, humor
of the case, he said, taking a position
senators he had "watched as my
and heartfelt sincerity in
grandfather was called 'boy' and as
his debut before the Senate
his grandmother was "denied the
that won't satisfy liberal demands for
Judiciary Committee.
dignity of using a bathroom."
a clear-cut declaration on abortion
Thomas' opening-day
JAMES P.
He paid tribute to black heroes
- but one that isn't easy to attack.
performance didn't clinch
and civil rights leaders, including
Overruling previous Supreme
his seat on the Supreme
GANNON
Thurgood Marshall, whom he would
Court decisions, such as Roe vs.
Court, as the tough ques-
replace on the court, and Martin
Wade, is "a very serious matter"
tioning of his critics point-
Luther King Jr. and Detroit's Rosa
Thomas said, adding that merely
ed toward some hard days ahead. But if there is
Parks.
disagreeing with the decision may
a fatal blow in the offing, it was not evident
"They changed society.
I have
not be sufficient grounds for a justice
Tuesday as Thomas deflected liberal attacks
to vote to reverse it.
and defused some issues that threaten his
benefited greatly by their efforts," he
On natural law, which liberals fear
chances of being confirmed by the Senate.
Thomas might use to impose a con-
In a historic Senate chamber that's been the
said. "Only by standing on their
servative moral code from the Court,
scene of hearings on disasters and scandals
shoulders could I be here."
the nominee said his past comments
ranging from the sinking of the Titanic to Wa-
Thomas said he hoped the hear-
merely reflected an "interest" in the
tergate, a black man up from the poverty of Pin-
ings would prove he is a decent, fair,
idea as a political philosophy.
open-minded man, a judge who does
"I don't see a role for the use of
Please see Gannon, 7A
not bring any personal agenda or
natural law" in deciding constitu-
ideological mind-set to the task of
tional issues, he said.
point, Ga., held his own before a jury
administering justice.
Thomas brushed off many of his
of white men well practiced in the
Biden, Kennedy and other com-
conservative utterances of the 1980s
political art of humbling the mighty.
mittee skeptics raised many doubts
as statements made by a Reagan
and questions about that view of
But unlike some ill-fated nomi-
appointee taking an advocate's po-
Thomas, who is a conservative vet-
nees who came before him, notably
sition in the day's policy debates. He
eran of the Reagan administration
the combative Robert Bork in 1987,
promised such views would have no
Thomas approached the bench of the
with a trail of speeches, writings and
bearing on his rulings as a justice.
honorable senators without a trace of
interviews suggesting a clear ideolog-
"My job is to uphold the Constitu-
ical bent to the right.
arrogance, offering a mix of reassur-
tion of the United States, not a
"The theme of this hearing could
ing replies and polite demurring on
personal philosophy or a political
the views he would bring to the
be entitled, 'Doubting Thomas,'
theory," he told Hatch, who ended
said Sen. Howell Heflin, D-Ala., who
nation's highest court.
the day's questioning by carefully
is considered one of the key swing
drawing out reassuring responses to
The committee's Democratic lib-
votes on the panel.
sticky issues raised earlier by the
erals, including chairman Joseph
"You are not the doubter," Heflin
nominee's critics.
Biden of Delaware and Edward Ken-
told the nominee. "It is we in the
When it was over, Thomas
nedy of Massachusetts, tried to nail
Senate who are the doubters."
brought his beaming smile to the
Thomas with his conservative writ-
The doubts about Thomas center
front of the room, pumping the
ings and statements from the Reagan
on his views on abortion, civil rights,
hands of the senators and throwing
years, but it was like trying to nail
affirmative action, and a somewhat
his head back in laughter at their
Jello to the wall. Some of Thomas'
fuzzy concept of natural law that
unheard comments.
replies were a bit wobbly but nothing
Thomas has frequently invoked in
He had the look of the man saying
really ugly stuck to him.
speeches and writings.
thanks to the hangmen, after the
"He's the Teflon candidate," Sen.
Orrin Hatch, R-Utah, one of Thom-
Tuesday's hearing gave Thomas a
rope broke on the gallows.
as' staunchest supporters, exulted
chance to reassure his critics on
after the hearing.
several of these key questions.
James P. Gannon is the Detroit
News' Washington Bureau Chief.
"It was a 20-run first inning, but
the game isn't over," Sen. John
Danforth, R-Mo., Thomas' chief
Senate sponsor, added as the nomi-
nee's Senate allies rushed to TV
cameras to put the most favorable
post-hearing "spin" on the day's de-
velopments.
69
The Detroit News
SEPTEMBER 11, 1991
Ab
Thomas can expect more questions
By Richard Willing
NEWS WASHINGTON BUREAU
justice," said Sen. Alan Simpson,
the use of a bathroom, but through it
R-Wyo.
all they remained fair and decent and
WASHINGTON - Liberal sena-
Early in the questioning, Thomas
good people."
tors plan more tough questioning of
struggled to clarify - his opponents
Supreme Court nominee Clarence
would say fudge - his views on
Thomas surprised some observers
Thomas today following an opening-
"natural law," a murky subject open
by refusing to hew a strict conserva-
day confirmation hearing that raised
to both liberal and conservative in-
tive line. Sen. Strom Thurmond,
but didn't settle the abortion issue.
terpretations.
R-S.C., sought Thomas' views on
Sen. Howard Metzenbaum, D-
Referring to a 1987 Thomas
sentencing violent criminals, lengthy
Ohio, said after Tuesday's session
speech, Sen. Joseph R. Biden Jr.,
criminal appeals and similar matters.
that Thomas was "evasive." Thomas,
D-Del., the committee chairman,
clearly hoping for a hard-line re-
said Metzenbaum, "didn't seem to
asked why Thomas endorsed a view
sponse. In each case, Thomas chart-
mind" answering questions about
of natural law that would outlaw
ed a middle course, working his
capital punishment, prisoner appeals
government regulation of industry.
concern for prisoners' rights into his
answer.
and other subjects likely to come
Referring to another 1987 speech,
before the Court, but he ducked on
Sen. Edward M. Kennedy, D-Mass.,
"I've been saying he's his own
abortion.
questioned why Thomas had called a
man," said Sen. John Danforth, R-
magazine article that described abor-
Mo., a friend of 17 years. "I think
Metzenbaum promised to press
Thomas on abortion as the hearings
tion as a "holocaust" to be a "splendid
that came through loud and clear."
go on, even if "I have to twist his arm
example" of applying natural law.
behind his back."
Thomas fumbled with his initial
answers, causing Metzenbaum to say
Sen. Patrick Leahy, D-Vt., criti-
later: "He's not the authority on the
cized the "polite stonewalling" of
subject we've been led to believe."
previous nominees and said he also
But with the help of some leading
intends to press Thomas. "In recent
questions from a friendly committee
years, we have danced around the
member, Sen. Orrin Hatch, R-Utah,
question of where nominees stand on
Thomas produced this explanation:
a woman's fundamental right to an
Some of his remarks had been taken
abortion," Leahy told the nominee. "I
out of context, and others applied
will expect forthright answers from
you."
only to natural law as the underpin-
Though they avoided the subject
ning for "civil rights."
Tuesday, Democratic senators are
"I don't see a role for natural law,
likely to question Thomas' hostility
or natural rights, in constitutional
to employment timetables and other
adjudication,' Thomas said.
affirmative-action plans during his
On other points, the nominee who
1982-1990 tenure as chairman of the
appeared Tuesday was much as his
federal Equal Employment Opportu-
supporters had billed him. Earnest,
nity Commission.
sincere, capable of showing emotion
The first day's session featured
- sadness more than anger - as he
praise for Thomas from friends,
recalled watching his "fair and de-
pointed questions from liberal com-
cent" grandparents mistreated in the
mittee members and a brief but
segregated South of his youth.
emotional summary by Thomas of
"I watched as my grandfather was
his rise from poverty and discrimina-
called 'boy,' Thomas told the com-
tion to become the second black
mittee, his voice catching with emo-
nominated to the nation's highest
tion.
court.
"I watched as my grandmother
Despite some rough spots, as he
suffered the indignity of being denied
struggled to explain his support for
controversial "natural law," the con-
sensus was that Thomas had said
little Tuesday to hurt his chances.
"He showed us what we want in a
70
ST.LOUIS POST-DISPATCH
SEPTEMBER 11, 1991
Thomas Backs Privacy Rights
By William H. Freivogel
Thomas said he has never read
His voice cracked and he cleared
Post-Dispatch Washington Bureau
the 1986 report of the White House
his throat as he recalled how "I
WASHINGTON - Judge Clarence
Working Group on the Family that
watched as my grandfather was called
Thomas testified Tuesday that he rec-
advocated that Supreme Court deci-
'boy.' I watched as my grandmother
ognizes a constitutional right to priva-
sions on abortion and privacy be over-
turned. Thomas had been a member
suffered the indignity of being denied
cy, has an open mind on abortion,
the use of a bathroom, and through it
would uphold economic regulations
of the group, but he said he had not
all they remained fair and decent and
and would not apply his "natural
read the report then or more recently
rights" philosophy to deciding Su-
as he prepared for the hearing.
good people."
Thomas does not agree with all of
Thomas acknowledged that he ben-
preme Court cases.
efited from Yale Law School's recruit-
Foes of Thomas' nomination to the
Thomas Sowell's explanations for why
women earn less than men. Thomas
ment of minority students and said it
Supreme Court charged immediately
said in 1984 that the conservative
was "only by standing on the shoul-
that Thomas had undergone a "confir-
ders" of "so many others who have
economist's work was a "much-need-
mation conversion."
ed antidote to cliches about women's
gone before me" that he succeeded.
"Clarence Thomas seems to be run-
He singled out Margaret Bush Wil-
earnings. Sowell suggested that
ning, if not sprinting, away from his
son of St. Louis, the former chairwom-
pay disparity resulted from such fac-
views," said Ralph Neas, director of
an of the National Association for the
tors as pregnancy, childbirth and an
the Leadership Conference on Civil
Advancement of Colored People, who
unwillingness to work overtime.
Rights. "He was flatly contradicting
But Thomas said Tuesday that "it is
once gave him room and board for a
important statements on natural law
summer in St. Louis as he studied for
obvious that there is sex
that he had made over the last five
the bar exam. Thomas recalled that
discrimination."
years."
instead of accepting payment, Wilson
But Sen. John C. Danforth, R-Mo. -
Thomas said that he did not want
asked him. "just along the way help
who introduced Thomas to the com-
to turn back the clock to the early
someone who is in your position."
mittee in a highly personal tribute -
20th-century era when protection of
Thomas said, "I have tried to live by
said that Thomas was not backing
economic rights resulted in Supreme
my promise to her to help others."
away from earlier positions.
Court decisions overturning social
Thomas said he would take to the
"That has been his view and has
welfare legislation such as wage and
court "the life, the people. the values
always been his view," Danforth said
hour laws. Some of his speeches have
of my youth, the values of my grand-
See THOMAS. Page 12
suggested that property rights de-
parents
who believed so very deep-
served higher constitutional protec-
ly in this country in spite of all the
after the first day of hearings. "He has
tion than they now get.
contradictions."
been waiting for two months" to set
The dramatic high points of the first
But he said he would not bring "the
the record straight, said Danforth.
day of the hearings were the state-
baggage of preconceived notions, of
Danforth described the first day of
ments by Thomas and Danforth. The
ideology. and certainly not an
Thomas' testimony as a "20-run first
ornate Senate Caucus room was abso-
lutely still as the wealthy senator from
agenda."
inning." But Neas said Thomas had
clearly hurt himself by appearing
Missouri told of his personal friend-
Judiciary Committee Chairman Jo-
ship with the man who had escaped
seph R. Biden Jr., focused the first
disingenuous.
the poverty and segregation of rural
round of questions on what he consid-
The highlights of two hours of ques-
tioning by Senate Judiciary Commit-
Georgia.
ers the hearing's most important issue
tee members were:
Danforth said that from the mo-
- Thomas' higher law-natural rights
Thomas said he would not use his
ment he met him at Yale Law School,
philosophy.
belief in "natural rights" as a means
Thomas was "his own person
Clar-
But Thomas said: "I was interested
of interpreting the Constitution. The
ence
Thomas
will
never
become
a
in the political theory standpoint. I
natural rights philosophy holds that
sure vote for any group of justices on
was not interested in constitutional ad-
men and women are born with inher-
the court."
judication. My interest in this area
ent rights such as life and liberty.
Danforth said it was important that
started with the notion how do you
Thomas said he had developed his
Thomas laughs - "the loudest laugh I
end slavery?
At no point did I or do
natural rights view as a "political the-
have ever heard.
To me, it is im-
I believe that the approach of natural
ory" to explain why segregation and
portant because laughter is the anti-
law
has a role in constitutional
racial discrimination were wrong. But
dote to the dread disease, federalitis."
adjudication."
he said, "I do not feel that natural law
Danforth also lauded Thomas' "se-
After the hearing, groups opposing
has a basis in constitutional
riousness," saying, "It is not anger
adjudication."
it is not bitterness that eats away at
Thomas drew attention to a law jour-
Thomas said he now disagreed
him. But it is profound, and it forms
nal article in 1988 that they believe
with an anti-abortion tract that he had
the person he is
contradicts Thomas' testimony. "The
once praised as "a splendid example
Then it was finally Thomas' turn to
higher-law background of the Ameri-
of applying natural law." The article
speak. Seated behind him were his
can Constitution
provides the only
argued that a fetus has a natural right
wife, Virginia Lamp Thomas; son, Ja-
firm basis for a just, wise and constitu-
to life and that states could not permit
mal; mother, Leola Williams; and sis-
tional decision," Thomas wrote then.
abortions.
ter, Emma Mae Martin.
The abortion tract, which Thomas
Thomas said he praised the article
Thomas told about playing in the
had called a "splendid example of
because he was talking to a conserva-
creeks of Pin Point, Ga., being sent to
applying natural law," was written by
tive audience.
live with his grandparents as a boy,
Lewis Lehrman, a trustee of the Heri-
being prodded on by the nuns at the
tage Foundation.
Catholic schools he attended.
Thomas said Tuesday that he "did
not endorse the article" but inserted it
in a speech about civil rights at the
Heritage Foundation, "as something
to
convince my audience."
ST.LOUIS POST-DISPATCH
SEPTEMBER 11, 1991
A12
Thomas Scores Points In First Round Of Confirmation Hearings
By Fred Barbash
one that could tell us how "my grand-
NEWS ANALYSIS
hearing since the modern turnover
own and others' - that liberal sena-
Thomas responded that he actually
©1991, The Washington Post
father could enjoy the fruits of his own
began at the court with the retirement
tors wanted to question him about.
meant that "in a perfect world" there
WASHINGTON - It was, for a time,
labor.
You had people who had to
end slavery, by what theory
do you
of the late Justice Potter Stewart in
There, on occasion, his memory
would be no such need. "But this is not
bait and switch: They baited, and he
work for $3 a day. I told you what my
protect the rights of someone who was
1981.
failed. He couldn't remember a par-
a perfect world."
switched.
mother's income was. By what theory
a former slave or someone like my
If the mission of the opponents was
ticular book, or a particular speech in
Thomas's opening statement said
The senator asked about property
do you protect that?"
grandfather, for example
to trip Thomas up on his law, they
its entirety, he said. He was sure none-
virtually nothing about his judicial
rights. The Supreme Court nominee
"I have pages and pages of quotes
The first round: If it was a battle of
failed. Sherbert VS. Verner. He had it.
theless that he hadn't spoken approv-
philosophy.
talked about his grandfather. The sen-
where you where you talk about natu-
sound bites, Thomas won it. If it was
Moore VS. East Cleveland - the one in
ingly of everything in it - just parts of
It was mostly about his impover-
ator asked about entitlements. The
ral law," said Sen: Joseph R. Biden Jr.,
about symbols, he may have won that,
which the court said a grandmother
it.
ished early life in Pin Point, Ga., and
nominee talked about the housing pro-
D-Del., delicately, and "not in the con-
too.
couldn't be thrown out of her home
And, in hindsight, he interpreted
Savannah.
ject in Savannah where his mother
text of your grandfather, not in the
Throughout Tuesday's first session
because she was housing her grand-
some of his earlier pronouncements
As is often the case, the nominee
had lived. For her, "it was a move up
context of race, not in the context of
of his confirmation hearings, Thomas
children - he had that, too.
differently than they sounded. Sen.
himself chose to answer some case-
in the world," Clarence Thomas told
equality, but you talk about it in the
and his backers on the Judiciary Com-
As a matter of fact, commented
Edward M. Kennedy, D-Mass.,
related questions and declined to an-
the senator, "a steppingstone
be-
context of commerce
"
mittee played his strongest suit - his
Thomas, "that would have had direct
pressed him on comments he once
swer others.
fore she could move to something
Well, Thomas said as Biden pressed
personal background - for all it was
implications on my own family
made saying there was no need for a
While the senators, in their opening
better."
him, "my Interest in this area started
worth.
He obviously had boned up on the
Department of Labor or a Department
statements, sought to frame the
Natural law? It was a theory, said
with a simple question: By what the-
It was, indeed, probably the most
case law. Not so, apparently, on some
of Agriculture or for other regulatory
ground rules for questioning, Thomas
the nominee, and merely a theory,
ory do you end slavery and after you
intensely personalized confirmation
of the controversial writings - his
agencies.
ultimately set his own.
72
The Boston Globe
SEPTEMBER 11, 1991
A1
Thomas disavows old stance
tain to vote to overturn Roe V. Wade,
Rules out
the 1973 court decision that recog-
nized a constitutional right to abor-
natural law
tion.
Asked about a 1987 statement in
which he praised as a "splendid ex-
to interpret
ample of applying natural law" an
article by conservative Lewis Lehr-
Constitution
man saying that abortion should be
outlawed and fetal rights recognized,
Thomas said he did not intend to en-
By Walter V. Robinson
dorse Lehrman's position.
GLOBE STAFF
In a lengthy, sometimes tortured
explanation that left Kennedy openly
WASHINGTON - After deliver-
skeptical and the committee chair-
ing an emotional paean to the values
man, Sen. Joseph R. Biden Jr., evi-
that freed him from the snare of pov-
dently dissatisfied, Thomas said he
erty, Judge Clarence Thomas yes-
praised the Lehrman article's focus
terday confronted skeptical senators
on natural law because he wanted
and promptly disavowed earlier con-
his conservative audience to accept
troversial statements that a higher
his view that natural law formed a
"natural law" ought to be a guiding
basis for constitutional principles un-
influence in interpreting the Consti-
derlying civil rights.
tution.
As for the Lehrman article,
Thomas, seeking to reassure
which described abortion as a "holo-
Democrats who are fearful he will
caust" that must be outlawed with-
bring radical principles to the Su-
out exception, Thomas said: "I do
preme Court, acknowledged as well
disagree with the article
to
the
that he believes the Constitution
extent that" Lehrman "uses natural
guarantees a right to privacy. But he
law to make a constitutional adjudi-
stopped well short of saying that
cation, in that sense, or to provide a
such a right also justifies a right to
moral code of some sort."
abortion.
Faced with senators' questions
Natural law issue addressed
about his beliefs, the high court
Biden, suggesting that Thomas
nominee, as expected, refused to say
agreed with some radical thinkers
how he would rule when the issue of
who believe that natural law can be
abortion comes before the high
used to prevent government from
court, declaring that to prejudge any
regulating business and to restrict
issue "would totally undermine and
individual rights, including the right
compromise my capacity as a judge."
to privacy - and therefore abortion -
After 10 weeks of Thomas' en-
sought to draw Thomas out on the
natural law issue.
forced silence, the committee's mem-
bers listened intently when he finally
Immediately, Thomas retreated
spoke. His remarks came after sev-
from some of his past statements,
eral hours during which the senators
saying that he never believed that
natural law should be used to inter-
repeatedly underscored the impor-
tance of their task. Sen. Herb Kohl,
pret the Constitution. What he had
Democrat of Wisconsin, declared
to say on the issue, he said, was
that Thomas will probably "shape
nothing more than "political theory,"
the nature of our country" for dec-
advanced by a "part-time political
ades to come.
theorist."
"I don't see a role for the use of
Much of the questioning of
Thomas dealt with his extensive re-
natural law in interpreting the Con-
ferences to natural law, the notion'
stitution," Thomas insisted.
"Was it just philosophic musing?"
THOMAS, Page 14
Biden, a Delaware Democrat, want-
ed to know, his skepticism evident in
THOMAS
the flash of his trademark full-
Continued from Page 1
toothed grin.
that higher, or moral, law forms
"That's exactly what it was,"
the basis for many of the rights enu-
Thomas answered.
merated in the Constitution and the
Puzzled, Biden frowned, declar-
Declaration of Independence. Some,
ing: "At this point, you leave me with
Thomas among them, have argued
more questions than answers."
for the use of such law in interpret-
Sen. John C. Danforth, Republi-
ing the Constitution.
can of Missouri, Thomas' patron, for-
Under questioning by Sen. Ed-
mer employer and principal Senate
ward M. Kennedy, Thomas repudiat-
supporter, pronounced the natural
ed the one statement that, more than
law issue dead at day's end, saying
any other, has convinced abortion
Thomas had "put those concerns to-
rights advocates that Thomas is cer-
tally to rest."
Outside the hearing room,
though, Thomas' opponents thought
73
cont.
"He is sprinting away from his
ered from notes scrawled on legal
record, and has done damage to his
paper, Thomas recounted his up-
chances for confirmation today," said
bringing in rural Georgia poverty,
Ralph Neas, the executive director
praised the grandparents who raised
of the Leadership Conference on
him when his mother could no longer
Civil Rights.
afford to, and genuflected repeatedly
Indeed, Thomas appeared to con-
to civil rights pioneers whose efforts,
tradict several of his earlier state-
he said, made possible his journey to
ments about natural-law application.
the brink of a Supreme Court confir-
In one 1988 speech, for instance, he
mation.
said: "The higher law background of
the American Constitution, whether
Acknowledging some of his crit-
explicitly appealed to or not, pro-
ics, who have challenged his opposi-
tion to affirmative action when he
vides the only firm basis for a just,
wise and constitutional decision."
himself benefited from it, Thomas
noted that he was a beneficiary of
That issue aside, the stage was
set for the days ahead, with Thomas
just such a program in his admission
to Yale Law School.
and the committee's six Republicans
using every opportunity to talk
He praised such civil rights fig-
about his background, and Thomas,
ures as Martin Luther King Jr. and
always deferential, sidestepping
Thurgood Marshall, the retiring jus-
some questions and at times saying
tice whose seat he has been nomi-
he had not recently reread speeches
nated to fill.
that senators wanted to ask him
about.
But the mood in the ornate Sen-
At one point, when Biden asked
ate Caucus Room, SO still as he re-
about natural law, Thomas began
counted his upbringing, shifted ab-
talking about his grandfather's job.
ruptly when Biden took the micro-
And when Biden and Kennedy ques-
phone, and sought to shift the focus
tioned him closely on some of his
from background to beliefs.
speeches, he began many of his ex-
"I for one do not doubt your hon-
planations with such phrases as:
esty, your decency or your fairness,"
"What I meant to say," "Let me at-
Biden said, adding that he would
tempt to clarify" and "I was trying to
make a distinction."
make the same stipulation about two
On one crucial issue, his contri-
of his colleagues, Sen. Orrin Hatch, a
bution to a White House paper on
conservative Utah Republican, and
families that recommended that Su-
Sen. Howard M. Metzenbaum, a lib-
eral Ohio Democrat.
preme Court privacy protections
"But I sure have a choice of
that underpin legalized abortion be
overturned, Thomas said his input
which one I would put on the bench,"
Biden said.
was limited to a passage on low-in-
come families.
Danforth, one of several senators
to introduce Thomas before his testi-
"To this day, I have not read that
mony began, said he has been flab-
report," he insisted.
bergasted at all the predictions from
Sen. Howell Heflin, Democrat of
Thomas' opponents that he would be
Alabama, a conservative not counted
a certain right-wing vote to reverse
as a likely opposition vote, said in an
many of the constitutional protec-
interview on Cable News Network
tions that have been ordained by the
that Thomas' testimony "raises the
court in the last generation.
issue of whether or not there is some
"Other than the nominee himself,
confirmation conversion taking place
I know Clarence Thomas better than
here." Heflin, though, said it was too
anyone who will appear before the
early to say if Thomas had been hurt
committee," Danforth said. Thomas
by the day's events.
is so fiercely independent and SO
much his own man, Danforth as-
Upbringing recounted
sured his colleagues, that "he will
In an often moving speech, deliv-
never become a sure vote for any
group of justices on the court."
The 14 committee members -
eight Democrats and six Republi-
cans - are expected to listen to two
weeks of testimony before voting on
the nomination and sending it to the
full Senate. Absent vesterday was
Sen. Dennis DeConcini, Democrat of
Arizona.
The Boston Blobe
SEPTEMBER 11, 1991
A 15
For Thomas, a choice between popularity and principle
By John Aloysius Farrell
seph Biden, the Delaware Democrat
choose an abortion, the judge said he
has said today is perfectly consis-
GLOBE STAFF
who is chairman of the Senate Judi-
was simply trying to show the right
tent."
ciary Committee, in his first ex-
'I don't think people will be as enamored
wing that it shared "a unifying
Civil rights lawyer William Tay-
WASHINGTON - From their
change with Thomas. "I find it hard
of his background tomorrow.'
theme" with the civil rights move-
lor said President Bush's appoint-
very first questions about "natural
to understand how you can say that."
ment, not that he favored such ex-
ment of a black conservative like
law" yesterday, his Democratic an-
After the hearing, other critics
CHARLES OGLETREE
treme applications.
Thomas was a "cynical" ploy de-
News
tagonists sought to
expanded on the theme.
Harvard University law professor
As Kennedy noted, Thomas has
signed to put liberals like Kennedy
force Clarence
"I think he did an incredibly poor
Analysis
praised conservative Lewis Lehr-
and Biden off-balance, and that the
Thomas to choose
job of responding to the natural law
man for a "splendid" essay that ar-
administration's strategy to use the
between his popu-
question and it has created some ob-
erful story of his rise from a share-
as the legal and philosophic basis for
gued that natural law affords an in-
*issue of race would backfire over
larity and his principles.
vious contradictions between his cur-
cropper's cabin to the federal bench
the American Revolution: the belief
alienable right to life to a fetus.
time.
To some extent, they succeeded.
rent testimony and many of his prior
- and the tactical advantages afford-
that all men are born equal with
But the Massachusetts senator
Ogletree agreed. Thomas will
Thomas abandoned his infatuation
speeches and writings," said Charles
ed by his unique status as only the
rights beyond those granted by Eng-
failed to mention that Thomas did SO
only be able to deflect tough ques-
with new and untested right-wing
Ogletree, a professor of law at Har-
second man of color to be nominated
lish kings.
in a 9-page speech that otherwise
tions for a short while, he said.
applications of natural law - the be-
vard University.
to the Supreme Court - will carry
lief that people have inalienable
"If he makes excessive refer-
The principle, said Thomas, was
was devoted to persuading conserva-
"He still has to answer very clear
the day.
rights beyond those granted by law
ences to the past, and gives no sense
Under cross-examination by Bi-
then used by abolitionists in their
tives to be more aggressive on the
questions about affirmative action,
of what he's thinking about the Con-
crusade against slavery and by en-
issue of civil rights, a fact that
civil rights, privacy and other is-
or governments - to avoid looking
den and Sen. Edward M. Kennedy,
like an extremist, a la Robert Bork.
stitution today, or about other im-
Thomas sought to turn their ques-
lightened jurists and legislators in
Thomas and his Republican allies
sues," said Ogletree.
But in fleeing his past, his oppo-
portant issues, he is likely to leave
this century's long struggle against
soon pointed out.
"He can try to talk about person-
tions around, portraying himself as a
considerable doubt in the minds of
civil rights champion who has had to
legal segregation.
"All of his thinking had to be
al experiences and family and see If
nents said, Thomas raised questions
seen in the context of equality.
that strategy works, but I think it's a
about his intellectual honesty and
the senators about whether he un-
overcome obstacles they never faced.
When Kennedy complained that
What he was searching for was a
very dangerous strategy when the
the facility with which he gave up his
derstands all the principles in the
Nowhere was that clearer, said
Thomas had complimented contem-
philosophy of desegregation," said
public has had several days of it. I
beliefs.
Constitution or, secondly, holds
Thomas, than in the discussion of
porary conservative theorists for
Sen. John Danforth, a Republican
don't think people will be as ena-
"Quite frankly, I find it hard to
them true," Ogletree continued.
natural law.
their work in applying natural law on
from Missouri who has served as a
mored of his background tomorrow.
square your speeches with what you
Thomas and his supporters, how-
Thomas Jefferson and other
behalf of property owners and busi-
mentor and sponsor for Thomas,
I think they will want some answers
are telling me today," said Sen. Jo-
ever, remain confident that the pow-
Founding Fathers used natural law
ness, and against a woman's right to
after the hearing was over. "What he
to the questions."
The Boston Globe
75
SEPTEMBER 11, 1991
A
In privileged setting,
panel hears of life of poverty
By Walter V. Robinson
Virginia Lamp Thomas, sat behind
GLOBE STAFF
her husband, tears welling in her
eyes and her lip quivering, with Ja-
WASHINGTON - For 12 min-
mal, his 19-year-old son by his first
utes yesterday, raw emotions sup-
marriage, beside her. In the public
planted dry legal principles as 13
gallery to the rear, her mother, Mar-
prosperous white senators, members
jorie Lamp, dabbed at her eyes with
of the world's most exclusive club,
a handkerchief.
listened intently to Clarence Thomas
Only Thomas' sister, Emma Mae
recall how his grandfather was
Martin, a former welfare recipient
called "boy," and how his grand-
criticized publicly by her brother for
mother was denied the use of a bath-
indolence, appeared unmoved, star-
ing straight ahead as he spoke.
room because of the color of her
When he and his brother were
skin.
separated from Emma Mae, Thomas
Before his grandparents took
recalled, they left the tenement with
him in, he said, his voice choking
all their belongings in two paper
with emotion as his audience sat si-
sacks.
lent, he and his mother and brother
The upbringing with his grand-
lived in a one-room tenement, shared
parents, he said, gave him the tools
a kitchen and relieved themselves in
he needed to excel.
a broken-down backyard privy.
"I can still hear my grandfather:
It was, he said, "a life far re-
'Y'all goin' to have mo' of a chance
1
moved in space and time from this
than me," Thomas said. "And he
room, this day and this moment
was right. He felt that if others sac-
rificed and created opportunities for
It was a world 80 vastly different
us, we had an obligation to work
from all this."
hard, to be decent citizens, to be fair
Ultimately, many believe, it is
and good people. And he was right."
that stark contrast in class, race and
"You see, Mr. Chairman," he
background that will make it difficult
said, addressing Sen. Joseph R. Bi-
den Jr., head of the Senate Judiciary
for many Democratic senators to
Committee, only one of whose mem-
cast a vote against Thomas.
Under the same ornate, gilded
bers was absent, "my grandparents
ceiling in the Senate Caucus Room,
grew up and lived their lives in an
Sen. Joseph McCarthy once berated
era of blatant segregation and overt
discrimination. Their sense of fair-
witnesses about Communist lean-
ness was molded in a crucible of un-
ings, the Teapot Dome scandal re-
fairness."
Sen. John C. Danforth, Republi-
ceived its odoriferous public airing,
can of Missouri and heir to the Ral-
and John Dean implicated President
ston-Purina fortune, who introduced
Nixon in the Watergate scandal -
Thomas to the committee, helped de-
events that had little in common,
lineate the gulf between their past
save the power and privilege of the
lives and Thomas'.
participants.
"I hope that sometime in the
High drama visited the historic
days ahead
someone will ask him
chamber again yesterday, and high
not about unenumerated rights or
emotion came with it.
the establishment clause, but about
The Supreme Court nominee's
himself. What was it like to grow up
voice choked as he spoke. His wife,
under segregation? What was it like
SCENE, Page 16
to be there when your grandfather
was humiliated before your eyes?
What was it like to be laughed at by
seminarians because you are black?"
Danforth concluded: "Everyone
in the Senate knows something
about the legal issues before the Su-
preme Court. Not a single member
of the Senate knows about being
poor and black in America."
Newsday
76
SEPTEMBER 11, 1991
5
Blurring a
Hard Line
Thomas tones
THOMAS from Page 5
Thomas got his chance to speak only
after the 13 members of the 14-man
law "was just some sort of philosophi-
committee - Sen. Dennis DeConcini
(D-Ariz.) was absent - gave opening
down themes
cal musing?"
"Well, that's exactly what it was,"
statements that for the most part broke
Thomas replied.
predictably along party and ideological
Clint Bolick, a conservative Washing-
lines. The committee has eight Demo-
of his speeches
ton lawyer and friend and former col-
crats and six Republicans.
league of Thomas' said after the hear-
But Sen. Arlen Specter (R-Pa.) put
ing: "I thought the nominee totally
Thomas on notice that he cannot neces-
held his own. I think the nomination is
sarily expect automatic support from all
solidly moving ahead. I don't think the
the six Republicans on the committee.
By Timothy M. Phelps
opposition scored any points today."
Thomas showed no sign of emotion
WASHINGTON BUREAU
Bolick indicated however, that Thom-
even when Sen. Patrick Leahy (D-Vt.),
Washington - The nation yesterday saw a differ-
as had not gone into more detail about
not previously one of Thomas' greatest
ent Clarence Thomas from the hard-line conservative
his natural law beliefs.
critics, told him that "your words strike
portrayed by 10 years of his own speeches and inter-
John Gomperts of People for The
me as the views of a combative, hard-
views.
American Way, a liberal lobbying group
line ideologue. The last thing I seek in a
Speaking out publicly for the first time since he was
that opposes Thomas, accused the
Supreme Court justice is ideology."
nominated by President George Bush to the Supreme
judge of backpedaling.
But Thomas got strong boosts from
Court, Thomas took great pains to praise the leaders
"He was backpedaling as fast as he
two Democrats not on the committee -
of the civil-rights movement he has criticized.
could. He wasn't backing away from his
Sam Nunn and Wyche Fowler Jr., from
And he moved during the first day of confirmation
record, he was running away from his
his home state of Georgia.
hearings before the Senate Judiciary Committee to
record," Gomperts said. "At some point
With support from southern Demo-
distance himself from controversial philosophies,
it simply is not credible."
crats such as Nunn and Fowler, it
such as the concept of "God-given natural law,"
In a brief opening statement with his
would be difficult for Thomas to lose,
which he has praised in his speeches in the past.
mother, sister (whom he had once criti-
according to liberal and conservative
Thomas, as expected, refused to say how he would
cized for living on welfare), son and
observers alike.
vote on abortion, but he did say that he thought there is
wife behind him, Thomas spoke lyrical-
a constitutional right of privacy. He did not elaborate,
ly and at times tearfully of his impover-
but Supreme Court decisions legalizing abortion and
birth control are based on this right, first cited by the
ished past, a history that critics charge
court under Chief Justice Earl Warren in the 1960s.
is being used by Thomas and his sup-
The 43-year-old federal appeals court judge and for-
porters to divert attention from his
conservative views.
mer chairman of the Equal Employment Opportunity
"We lived in one room in a tene-
Commission admitted under persistent questioning
from committee Chairman Joseph R. Biden (D-Del.)
ment," said Thomas. "We shared a
that he had never read the controversial White House
kitchen with other tenants and we had
Report on the Family that came out in 1986, with his
a common bathroom in the backyard,
and 21 other names on it. That report attacked court
which was unworkable and unusable."
decisions finding a right of privacy in family affairs.
Thomas, who has repeatedly attacked
His sometimes faltering and sometimes contradic-
traditional concepts of affirmative ac-
tory responses on the first day of two weeks of com-
tion, admitted that he benefited from it
mittee hearings seemed to puzzle Biden, who each
at Yale Law School. And he went out of
time Thomas disowned such concepts as natural law
his way to praise the leaders of the civil-
would refer to speeches in which he had praised it.
rights movement, particularly the man
"Quite frankly, I find it hard to square your speech-
he hopes to succeed on the Supreme
es with what you are telling me today," Biden said.
Court, Thurgood Marshall.
Biden and later Sen. Edward M. Kennedy (D-
"They changed society and made it
reach out and affirmatively help," he
said. "I have benefited greatly from
Mass.) pressed Thomas on assertions in many of his
their efforts. But for them, there would
speeches that the concept of a higher or natural law
have been no road to travel."
existing beyond the written laws of man brings par-
He said he would not bring to the
ticular protections to the rights of property.
Supreme Court "the baggage of precon-
Such assertions, Biden charged, were used by the
ceived notions, of ideology, and certain-
court to strike down New Deal economic regulation in
ly not an agenda."
the 1920s and '30s, and are currently gaining new
acceptance. Biden cited a speech in which Thomas
had said these new ideas were "attractive."
Thomas said he was interested in such ideas only as
experiments in political theory, not as constitutional
concepts to be applied in the courts.
"I don't see a role for the use of natural law in
constitutional adjudication," he said.
Raising his arms in frustration, Biden asked Thom-
as if his often repeated thoughts on natural
Please see THOMAS on Page 17
THE PLAIN DEALER
SEPTEMBER 11, 1991
1 A
Court nominee
Court
O., called Thomas' testimony "quite
hoped to convince the conservatives
inconsistent." Biden told Thomas:
at the Heritage Foundation to use
"You leave me with more questions
the same kind of reasoning to bolster
than answers."
FROM/1-A
laws protecting civil rights of minori-
Sen. Howell Heflin, D-Ala., dubbed
ties.
the political and personal power of
the hearings the "doubting Thomas"
avoids issue
"I used their themes
Thomas' opening statement, in
hearings. "We are the doubters," he
to serve
told Thomas.
the purposes" of promoting better
which he played to his strong suit,
Several senators - including Met-
civil rights laws, he said.
describing what it was like growing
up poor and black in Georgia.
zenbaum - have said their votes to
Some critics thought that sounded
"I watched as my grandfather was
confirm or reject Thomas depend pri-
like dissembling.
of abortion
called "boy," said Thomas, his voice
marily on how he addresses the
cracking. "I watched as my grand-
abortion issue.
"He's changed his tune, com-
pletely denounced his philosophy of
mother suffered the indignity of be-
"We've danced around the ques-
ing denied the use of a bathroom."
tion" for years, said Sen. Patrick
the last decade," said Nan Aron, di-
Seated behind him, his wife,
Leahy, D-Vt. It is "one of the burning
rector of a liberal group, the Alliance
By KEITH C. EPSTEIN
attitudes.
Virginia, was in tears. It was a perfor-
social issues of our time the sin-
for Justice. "The key problem he
PLAIN DEALER BUREAU
His testimony under sharp ques-
mance which none of the senators
gle issue about which this committee
faces now is credibility."
tioning was often vague, and some-
mostly wealthy and all white - could
and the American people most
In his opening statement, Thomas
WASHINGTON - Supreme Court
times seemed to contradict previous
challenge.
urgently wish to know the nominee's
sought to defuse some of the crit-
nominee Clarence Thomas, in the
statements, fueling hopes among
"Let's just stipulate," said Senate
views.'
icism against him.
first day of confirmation hearings, re-
opponents that they might be able to
Judiciary Committee Chairman Jo-
But Thomas insisted his advocacy
fused to say whether the constitu-
He acknowledged his debt to Rosa
stop him from being confirmed.
seph Biden, D-Del., "that you're
of "natural law" had been nothing
Parks, civil rights leaders, and he
tional right to privacy includes a
"He seemed to be sprinting from
honest, decent and fair.'
more than "philosophical musings."
woman's right to terminate her preg-
even praised Thurgood Marshall,
his record," said Ralph Neas, director
Instead, liberals targeted Thomas'
CLARENCE THOMAS: "I
He said he recognized the consti-
whom he would replace, as "one of
nancy.
of the Leadership Conference on
judicial philosophy, primarily his
watched as my grandfather was
tutional right to marital privacy that
"There is a right to privacy,"
Civil Rights. "I now believe there's a
belief in "natural law," the notion
called "boy.'
underlies Roe VS. Wade, but he re-
the great architects of legal battles to
open doors" for minorities.
Thomas testified yesterday. "The
chance to stop this nomination."
that a higher moral code of right and
fused to say what position he would
issue of marital privacy is protected,"
Thomas' handlers, meanwhile,
wrong can transcend written laws.
take on abortion.
The hearings are to continue for
but "I do not think I could maintain
were upbeat. "Things went very
Opponents fear his advocacy of
apparent backpedaling over several
He said he couldn't comment and
several weeks.
my impartiality and comment" on
such higher laws that transcend the
previous speeches and articles, in-
well," said White House aide Ken
also maintain his impartiality. But he
abortion.
Duberstein. Added Sen. John
Bill of Rights and Constitution could
cluding an endorsement of a schol-
did say: "I don't think a judge's per-
Thomas, whose views have made
be used to outlaw abortion. Thomas
ar's argument against abortion, to
Danforth, R-Mo.: "It's now clear he's
sonal opinions should play a role in
him the most controversial choice for
promised to stick to written laws and
raise questions about his credibility.
not some scary guy with his own
deciding cases."
precedents.
The apparent contradictions be-
the nation's highest court since Rob-
agenda."
Specifically, Thomas said that
ert H. Bork, emphasized his personal
Even liberals had to acknowledge
"I don't think natural law has an
tween his record and his testimony,
when he praised as "splendid" a con-
story rather than opinions or judicial
SEE COURT/7-A
appropriate use in constitutional
and the mystery of Thomas' judicial
servative scholar's use of natural law
adjudication, including the question
philosophy, fueled concerns of liber-
to argue against abortion, he had
of abortion, he said.
als on the committee.
only been playing to his audience, a
However, opponents seized on his
Sen. Howard M. Metzenbaum, D-
group of conservatives. He said he
78
The Evening Sun
Wednesday, September 11, 1991
A10
Mfume has doubts on Thomas
Hopes nominee
reservations about Thomas.
willing to support Thomas, despite
"Now I have some very serious
misgivings, because he is black.
will answer the
problems," Mfume said yesterday,
Mfume said Thomas' views, not
listing concerns about Thomas'
tough questions.
his race, are the issue that concerns
views on abortion, affirmative ac-
him.
tion and the 1954 Supreme Court
By John Fairhall
case that led to school desegrega-
Mfume's background is not un-
like Thomas' in that both men over-
Evening Sun Staff
tion.
WASHINGTON - Like many
Mfume said he hopes the hearing
came poverty and other obstacles.
Americans who are curious about
will bring out information on Thom-
Acknowledging this, Mfume ques-
Supreme Court nominee Clarence
as' past performance as head of the
tioned whether Thomas recognizes
Thomas, Maryland Rep. Kweisi
Equal Employment Opportunity
the sacrifices of previous genera-
tions.
Mfume is looking for clues in the
Commission and his current role as a
Senate confirmation hearing.
federal appellate court judge.
"They laid down their bodies,
Mfume, D-7th, is neutral on
"I think many people have been
made their bodies a bridge so we
Thomas' nomination. Although the
neutral in this because Clarence
could run across," Mfume said.
majority of the Congressional Black
Thomas has been a question mark to
"I haven't forgotten that and I
Caucus voted to oppose the nomina-
many people."
don't know if Clarence Thomas has
tion, Mfume did not vote, despite
Some black leaders have been
or not."