Supreme Court: Judging the Judge

By PRISCILLA PAINTON

For one moment last week, it seemed possible that the Senators might unravel the tight bundle of polite obfuscation that is Clarence Thomas, Supreme Court nominee. Delaware's Joseph Biden, who chairs the Senate Judiciary Committee, jabbed him with questions and snappy comebacks on Thursday morning, and Thomas was briefly thrown off his monotone. But his Republican handlers called for a break, and both Thomas and his Democratic inquisitors returned to a harmless game of parry and dodge.

After 22 hours of testimony, the 14 members of the Senate Judiciary Committee extracted little from Thomas. He told them the Constitution embraced a right to privacy but refused to offer any thoughts on the Supreme Court's Roe v. Wade abortion decision. He did not repudiate his writings favoring the use of "natural law" but said they were the musings of a part-time political theorist and would have no bearing on his interpretation of the Constitution. The Democrats had to admit they were stymied. "Who this man really is, I don't really know," said Herbert Kohl of Wisconsin. The Republicans happily bragged about their strategy. "It's O.K. not to give the answer as long as it's not because you don't know the answer," said a senior Administration official.

If the hearings revealed little about Thomas, they said much about the limits of a body that has become one of the liberals' last redoubts on Capitol Hill, the only place where Democrats, locked out of the White House for the past 10 years, can attempt to fend off conservative nominees to the court. Even when Biden and Massachusetts' Edward Kennedy teamed up four years ago to defeat Robert Bork, it looked as if the Democrats could only briefly prevent the Reagan White House from seizing control of the Supreme Court well into the 21st century. That proved a Pyrrhic victory.

After Bork, the White House devised a sort of Ferdinand the Bull strategy for future nominees: it taught them to win by refusing to engage. "There isn't much that the Senate can do about rejecting a nominee or thwarting the President. All a nominee has to say is, 'I have an open mind,' " says Yale Kamisar of the University of Michigan Law School. With that strategy, the White House easily slipped through the innocuous but no less conservative Anthony Kennedy and the enigmatic David Souter. Says Kamisar: "The lesson is that the Bork hearings were an aberration."

So why have Supreme Court hearings at all? For more than 100 years, the committee did without them. And even after they began in 1925, there were nominees like William O. Douglas in 1939 who waited patiently to be questioned only to be sent home. But while this public bar exam has become de rigueur, its rules have changed from nomination to nomination, with Republicans and Democrats often contradicting themselves on what questions are appropriate. Some examples of Senators who condemn "litmus tests" at one hearing but brandish them at the next:

-- When Lyndon Johnson picked Justice Abe Fortas to be Chief Justice in 1968, conservatives like South Carolina's Strom Thurmond demanded that he explain his judicial philosophy; after 10 days on the hot seat, Fortas was ultimately rejected. But during the Bork hearings, Thurmond argued that his colleagues should consider only the judge's competence, temperament and integrity.

-- Kennedy made the same argument in 1967 when he defended the Supreme Court appointment of Thurgood Marshall, the retiring Justice whom Thomas would replace. But as a committee member 20 years later, the Massachusetts Senator led what was almost exclusively an ideological campaign against Bork.

-- When Sandra Day O'Connor was before the committee in 1981, faced with strong opposition from antiabortion activists, Ohio's Howard Metzenbaum defended her candidacy by arguing that "there is something basically un- American" about denying a confirmation on the basis of someone's opinion on a single issue. But he made clear at the outset of last week's hearings that he intended to draw from Thomas his position on a woman's right to choose abortion and is now likely to oppose him for not affirming that right.

-- Biden went after Thomas for the latter's "natural law" approach to interpreting the Constitution, by which judges can invoke vague notions of eternal justice that pre-exist the written document. Yet in his opening remarks to Bork four years ago, Biden celebrated something that sounded like a liberal's version of "natural law" as the common man's reproach to Bork's literal reading of the Constitution. "As a child of God," said Biden, "I believe my rights are not derived from the Constitution . . . My rights are because I exist."

All this contention may make some citizens yearn for the earlier days of this century when the Senate Judiciary Committee was more deferential to the President's choices. One bipartisan panel even concluded in 1988 that the confirmation system had become so "dangerously close to looking like the electoral process" that candidates should not have to testify.

But legal scholars say the White House lately has the hearings it deserves. Ever since the Reagan White House began screening potential nominees for ideological correctness, the Senate Judiciary Committee has become the stage where the nation's divided passions are exposed, especially now that abortion has assumed such a prominent place on the judicial agenda. Says Professor Stephen Gillers of the New York University School of Law: "The process has become more cynical, and so the Senate has become more activist."

With reporting by Michael Duffy and Hays Gorey/Washington and Andrea Sachs/New York