Thomas Carries Stigma Of Doubt to High Court

ANY day now, Clarence Thomas will assume the robes of an associate justice of the United States Supreme Court and take his seat behind the bench, where he will likely sit for well over a generation.Seldom, possibly never, has a justice been seated under such intense and pervasive public scrutiny and under such a cloud of misgivings. Some of the discontent is directed not at Judge Thomas but at the confirmation process itself. Several suggestions have come forward to make confirmation proceedings more orderly and rational - and less like a no-holds-barred political campaign. But many experts doubt the political will to change a process that has, after all, been a practical success for conservatives. Thomas's 52-to-48 confirmation vote in the Senate was the closest in memory. And some of those senators who voted for him expressed great reluctance. "I intend to vote for confirmation but without enthusiasm," said Sen. James Exon (D) of Nebraska before the vote on Tuesday. "Unfortunately, in my view, the hearings have not provided any overall conclusive facts or definite truth." About half the country sided with Thomas in his credibility contest with Anita Hill, the Oklahoma law professor who accused the judge of sexually harassing her 10 years ago. About a quarter did not. "I have been troubled by the allegations," Sen. Richard Shelby (D) of Alabama told a network interviewer before the vote, but he opted to give Thomas the benefit of the doubt. Several other Democrats made the same grudging choice. The confirmation process itself has drawn much of the heat for the past week. Before a leak to the press forced Professor Hill's allegations of sexual harassment into the open, the Thomas hearings were widely considered a failed effort by Democratic senators to draw out his judicial philosophy. After Hill's charges came to dominate the proceedings, Thomas himself bitterly complained about his ordeal and what it cost his reputation. His supporters railed against the press leak that was timed so deftly to attempt to derail his confirmation. Citizen-viewers complained that the graphic remarks attributed to Thomas by Hill were spilling into their living rooms during prime time and morning cartoon hours. Hill's supporters blasted the Senate Judiciary Committee for failing to aggressively investigate her charges when they first arose. They bemoaned Republican tactics in attacking Hill's credibility and Democratic passivity in failing to closely cross-examine Thomas. "At a minimum," says political scientist Bruce Buchanan of the University of Texas, "the nature and character of these proceedings have taken the quality of a campaign." And as in modern campaigns, he adds, both sides became "tawdry and mean." "We've gotten into a situation in which each side is desperate for victory and distrustful of the other side," says Dr. Buchanan. "So you get a kind of political arms race." One proposal that several prominent law professors have espoused for reining in the politicking over Supreme Court appointments is for the Senate Judiciary Committee and the White House to draft a mutually acceptable slate of candidates for the White House to nominate from. This practice was successful a few times during the 19th century, but not across such bitter party divisions as between the current Senate and White House. Now, says Robert Katzmann, a constitutional law expert at the Brookings Institution, a compromise slate is not politically feasible because the White House does not need to compromise. At the root of the ugly and inconclusive Thomas hearings is a government sharply divided between White House Republicans and Senate Democrats, many believe. Like Ronald Reagan in his second term, President Bush has chosen to push for an ideologically conservative judiciary. Supreme Court nominations have always been partisan and political, says Michael Gerhardt, a law professor at William and Mary College, but the stress on ideology on the court is more extreme in recent years. President Eisenhower, for example, dealt with a Democratic Senate by nominating noncontroversial, moderate justices. "In this case, the president chose somebody whose record and credentials would make him controversial," says Buchanan. Because the court now lacks any true liberals, Mr. Gerhardt suggests that it is probably the most ideologically unbalanced court this century. While Bush has raised ideology into the most important factor in choosing justices, says Judith Baer, a political scientist at Texas A&M University, "the Senate is still playing by the old rules." Theoretically, the Senate could establish its own standards by simply voting down nominees it disapproves, but the Thomas confirmation shows that Senate Democrats do not have the votes to strongly oppose the president. Nevertheless, the Senate could improve its confirmations by forming a consensus - in a calm moment between nominations - on just what questions are fair game, says Mr. Katzmann. On Tuesday, the day of the Senate vote, telephone traffic into Washington, D.C., was five times its normal volume. Public television stations that carried the last day of the hearings Sunday scored ratings over five times their usual Sunday average. "I happen to think this was a great thing," says Jeffrey Tulis, a University of Texas political scientist. "It was the most riveting and focused discussion of domestic issues in 20 years or so." It may be unfortunate that the issues were sensationalized and personalized, he says, but Thomas made the Supreme Court, Anita Hill won a large group of admirers that will continue to rally behind her cause, and "Americans were introduced to all kinds of issues they don't usually discuss." As Thomas prepares to hear his first cases as a Supreme Court justice, however, few Americans can be satisfied that they know the truth.