CLARENCE THOMAS'S Supreme Court seat is his to lose.That's the view of court-watchers, including some of the judge's liberal opponents, as President Bush's nominee begins confirmation hearings today before the Senate Judiciary Committee. With lingering memories of Judge Robert Bork's failure to gain confirmation four years ago, the Bush White House has left nothing to chance in the couple of months since the nomination. "We're in good shape," says a White House official who has helped Judge Thomas prepare. "Of course, since Bork, no one's quite sure what the rules of the game are. But I'd say the mood at the White House is upbeat." If Thomas is "aggressively uncooperative in answering questions on flash-point issues like abortion, it could backfire," says a senior Democratic aide on Capitol Hill. "A lot depends on how senators are defining 'advice and consent. Thomas's solid endorsement from Sen. John Danforth (R) of Missouri - a moderate Republican, longtime friend and one-time employer of Thomas, and point man on the civil rights bill - has helped smooth the image of this self-described conservative. Some aspects of Thomas have made the pre-hearings period dicier than Supreme Court Justice David Souter's was last summer. Thomas has a livelier personal history and has published and spoken more in public than had Souter. But the fact that Thomas is black has helped him. Opposition to his nomination has been slow to coalesce; one reason, say liberal activists, is that some people are reluctant to be seen opposing a black's rise to the high court. Thomas also benefits from his frequent appearances before Congress, both in his confirmations to become head of the Equal Employment Opportunity Commission and a Washington, D.C., Circuit Court judge, as well as his 50-plus appearances testifying as EEOC chairman. As part of his preparation for the next two weeks, the White House has staged mock confirmation hearings for Thomas, drilling him on some of the more controversial matters senators will raise, such as natural law. And with Senator Danforth's help, Thomas has made courtesy calls on most senators. Now that the hearings are starting, Thomas will be on his own. Sen. Joseph Biden (D) of Delaware, chairman of the Senate Judiciary Committee, has said he will press Thomas on natural law, the legal philosophy that individuals have certain rights dictated by a higher order. Natural law has been interpreted in many ways, and Senator Biden says he wants to pin down Thomas's views on it. A crucial related matter is abortion, an issue that the court will face in its fall session. Thomas's opponents hope that, even if he refuses to state his position on abortion, as expected, the hearings will reveal his negative views of affirmative action and his record as head of EEOC, where he faced criticism for lax enforcement of laws.
Lawmakers' intent Senators are also concerned about "legislative intent." As the court has become more conservative, it has become less willing to consider the intentions of lawmakers when interpreting laws and more willing either to formulate its own interpretation or to accept the administration's. So far, senators are reporting a lower volume of mail on Thomas than they received on Judge Bork. But some anti-Thomas activists caution against overstating the defeat of Bork. "We've put it into mythical proportions," says George Kassouf, director of the Judicial Selection Project at the Alliance for Justice. "There wasn't a groundswell of feeling until the hearings."
Lessons from Bork During his confirmation hearings, Bork committed what has since been deemed the cardinal sin of speaking his mind, no matter how blatantly his views contradicted those of the Democratically controlled Senate. An analysis by the Center for Media and Public Affairs confirms Mr. Kassouf's view that, at a comparable stage in his confirmation, Bork was no worse off than Thomas. The center analyzed network television news coverage of Thomas between July 2 and Aug. 15. Sixty-seven percent of the comments on Thomas were negative. At a similar point, news coverage for Bork was split 50-50. With the hearings set to start today, the Citizens Committee to Confirm Clarence Thomas is planning a $500,000 radio and television campaign. According to the group's president, former Reagan White House aide Gary Bauer, the campaign will be targeted particularly at the South, traditionally the swing region among senators for nominees.
The question of race Pro-Thomas activists hope to make the Thomas nomination a campaign issue, saying a vote against Thomas would alienate black voters. A poll by the Wirthlin group contradicts that view, however. The survey, conducted a month ago, found that only 33 percent of blacks favored Thomas's selection, while 43 percent of whites favored it. Thomas's opponents are taking a more grass-roots approach, urging people to contact their senators. But they admit they are late in mobilizing. Aside from people's reluctance to work against a black nominee, some activists cite a feeling that with a conservative majority already in place in the Supreme Court, it's too late to "save" the court.