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No Clearance for Clarence

By John A. Cloud

SUMMER IS ENDING, and Judge Clarence Thomas is sitting in a crowded Senate conference room trying desperately to be confirmed for a high federal position. Again.

In August 1986, he got the nod to chair the Equal Employment Opportunity Commission (EEOC). Just last August it was the District of Columbia Appeals Court, a traditional stepping stone to the Supreme Court. And yesterday, he began what should be a successful bid for the highest court. After all, he's had a lot of practice.

And coaching. The whole system now employed by the White House to ensure confirmation for its nominees closely resembles the kind of preening and priming that goes on before a Presidential debate. For the few weeks before the hearings began, Thomas was surrounded by a White House gaggle of advisers known for their skill in preparing candidates for public appearances. (Dan Quayle was not their greatest triumph.)

He's watched video tapes of past confirmation hearing performances, both successful (the lachrymose, unspecific David H. Souter) and disastrous (the fiery, defensive Robert H. Bork). He's read mountains of transcripts of the hearings. Former White House adviser Kenneth M. Duberstein and Quayle Chief of Staff William Kristol '73 even have him preparing a wardrobe.

As the last few weeks of only feeble opposition and anti-Thomas lobbying prove, the Bush administration's strategy couldn't have worked better. As with the 1988 Presidential race, Bush and his advisers have succeeded in creating a debate not about Thomas's record and judicial qualifications, but one about labels and attacks.

By all accounts, the strategy will work. The hearings will almost be scripted from gavel to gavel. Thomas will be confirmed, and the Supreme Court will be worse for it.

IT'S NOT that Thomas isn't smart. He has a fine academic record, and it's difficult to imagine that he will embarrass the Supreme Court. But that doesn't mean he's qualified.

Thomas simply doesn't have the judicial experience that should be required for a seat on the highest court in the nation. He only wrote one major opinion in his single year on a court. Before that, his controversial four-year tenure as chair of the EEOC was marked by lax investigation of discrimination complaints which led even conservative commentators to call him an inveterate brown-noser (Ronald Reagan took immense pleasure in seeing the EEOC flounder).

Many have suggested that Thomas's lenient prosecution discouraged people from even pursuing complaints with the EEOC. This made expensive, private court action the only alternative. Even the EEOC's official 1990 report acknowledged that the 10 percent drop in discrimination complaints within the federal government between 1987 and '88 was "the largest reduction in the government wide inventory" of complaints ever.

BUT THOMAS'S RECORD has received short shrift in the national debate over his nomination. Why? Lucky timing for the administration is part of it. The spot on the Court opened when a near-senile Thurgood Marshall retired in late July. Bush ignored precedent and quickly picked Thomas even though some insiders (namely Chief of Staff John H. Sununu, who couldn't bark too loudly because he was still licking his wounds over the travel flap) doubted Thomas's judicial proficiency.

Bush's advisers probably figured a sudden pick would catch the liberal opposition groups off guard in the peak vacation month of August. Unfortunately, it seems they were right. The NAACP, the AFL-CIO and a coalition of civil rights groups all rejected Thomas on the same, knee-jerk grounds--he was too conservative.

Sure, his beliefs are on the ugly side of right-wing. Yes, conservative "natural law" is worse than Marshall's or William J. Brennan's own liberal "natural law." But this has predictably done nothing to sway fence-sitting Senate Judiciary Committee members, who are eager to avoid the bloody political battle such rationales for rejection would spark, and who are wary of voting against a Black anyway. (Especially those Southern Democrats so crucial in flaying Bork's high court prospects.)

Dubbing Thomas too right-wing for the Court is simply futile. It's not a rationale that will work, and even if Thomas were nixed, the replacement would still reflect Bush's political views.

These groups should have focused on Thomas's lack of experience. The American Bar Association (ABA) purportedly did when they gave Thomas the "qualified" rating (as opposed to "well qualified" or "not qualified"), but they rarely challenge the administration--this might jeopardize their status as official reviewer for the Justice Department. Still, Thomas was the first nominee to receive a rating worse than "unanimously well qualified" since the ABA began using that rating system.

NO ONE should be naive enough to believe that this is the first time politicking has determined a President's pick for the Supreme Court. Thurgood Marshall, after all, took a seat vacated when President Lyndon B. Johnson named Ramsey Clark, a personal enemy, to be U.S. Attorney General so that his father, Thomas Clark, would retire from the Court.

But Thomas is a near-total political creation, and the Senate should reject him. Not because he's a conservative, as the liberal interest groups hope, but because he's not as qualified as he should be. Obviously his rejection wouldn't prompt Bush to name a moderate. But maybe he would pick someone with more experience.

No, Thomas won't destroy the judicial system. But the Supreme Court deserves the best.

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