Cautious Thomas Plays Hearings by the Script

SO far, Clarence Thomas's confirmation process is going according to script.President Bush's Supreme Court nominee has riveted attention on his up-by-the-bootstraps life story, causing more than one senatorial voice to crack (as well as his own). He has assiduously avoided answering any questions that might be seen as revealing his views on abortion. He has been polite and solicitous. In short, he has not dropped any bombshells that could "Bork" him. "After two days, Thomas was more confirmable, because he hadn't stumbled or said anything that might persuade people to vote against him," says Stanley Kutler, a law professor at the University of Wisconsin. Although the conservative federal circuit court judge has left a trail of frustration - and some confusion - over his rather stunning repudiations of views he expressed in countless speeches and writings, he seems to have learned the White House recipe for Supreme Court confirmation: Formulate as many versions of "no comment" as possible, and use one every time a question relates to abortion in any way. A formulation that served Supreme Court Justice David Souter well a year ago, it was born of the experience four years ago of Judge Robert Bork, who alienated the Senate Judiciary Committee with his combative style and judicial views. With the increasingly conservative Supreme Court moving inexorably toward a reconsideration of the 1973 Roe v. Wade decision that guaranteed the right to abortion, a nominee's views on abortion have become the most sought-after commodity in what have become perennial Supreme Court confirmation hearings. It is widely assumed that if a nominee were to admit to an anti-abortion position, the Judiciary Committee would reject that nominee. What has surprised many observers of Thomas's hearings is the extent to which he has dismissed his own past writings and statements. For example, in 1987, when he praised an article by conservative businessman Lewis Lehrman that called abortion a violation of "natural law an amorphous concept of a higher law that transcends the written law - it was merely "a throwaway line," Thomas said in his testimony. He added that, in fact, he disagreed with the article. Abortion-rights advocates worry that a "natural law" interpretation of abortion statutes could result in the outright banning of abortion nationwide. Although Thomas has been viewed as an adherent of natural law - a reputation that worried some Senate committee members that he would not necessarily look to the Constitution as the highest authority in his rulings - he has played down this interest in the hearings. A number of times, he said it was just a part-time intellectual pursuit into a political philosophy and not a basis for constitutional adjudication. "I have no agenda," Thomas has said repeatedly. When queried about his praise for the arguments of certain natural law proponents who defend an activist Supreme Court that would strike down laws restricting property rights, Thomas said he had a difficult time recalling the text. "I don't believe that in my writings I have indicated that we should have an activist Supreme Court," he said. Sen. Howell Heflin (D) of Alabama, who carries a swing vote on the judiciary committee, wondered in an interview on the Cable News Network if Thomas was not repeating "confirmation conversion," Judge Bork's attempt to soften his views during his confirmation hearings. Before his nomination to the Supreme Court, for instance, Thomas stated that he did not believe the Constitution protects the right to privacy, which provides the basis for the Roe v. Wade decision. But on the opening day of testimony, Thomas stated explicitly that he believes the Constitution does protect privacy. Still, that does not indicate how Thomas would rule on abortion, several senators noted. Even some of Thomas's supporters have been dissatisfied with his early testimony. For the "natural law" crowd, Thomas's tactic of distancing himself from that philosophy is a disappointment. "I am deeply disturbed by his backing away from what he has written," says Roger Pilon, director of the Cato Center for Constitutional Studies and an adherent of natural law. "It's as if he's dealing with East German border guards: Say whatever it takes to gain passage." Conservative legal consultant Bruce Fein says Democrats are looking for a way to boil down the decision on Thomas to two choices: "They will say, 'One, either he's deceitful, or two, he's so untutored he's not qualified. "The fact is, Clarence Thomas is a hard worker, but he's not an erudite scholar," says Mr. Fein. Further, he rejects the argument some Thomas opponents have made that the judge is unqualified for the court because he does not yet appear to have formulated his own judicial philosophy. Of the 105 justices to serve on the Supreme Court, only a handful have been brilliant legal scholars who already had a philosophy when they first sat on the court, Fein says. Nonetheless, Thomas's strategy of backing away from past statements has so far left his critics little to latch onto. "I have to wonder if some of this isn't rather cynical," says Cheryl Harris, a professor at Chicago-Kent College of Law and co-chair of the National Conference of Black Lawyers. "There are hard questions before the Supreme Court that affect people's lives. He's being manipulative."