Why Confirm an Artful Dodger?

It is hard not to have doubts about the fitness of Judge Clarence Thomas for the Supreme Court after his sometimes distressingly evasive testimony to the Senate Judiciary Committee last week.

He was not credible when he told the committee that he had never discussed Roe v. Wade with anyone, at Yale Law School or since, nor developed an opinion about it.

He was unconvincing in repeatedly disavowing, rather than defending, the apparent meaning of his controversial (but perfectly defensible) past statements on the importance of "economic rights" and the like.

Thomas’ stubborn insistence that his mishmash of musings about natural law had no relevance to constitutional adjudication, for example, is hard to reconcile with his 1988 contention that "the higher-law background of the American Constitution . . . provides the only firm basis for a just, wise and constitutional decision."

He dodged too many questions about law by talking about his now famous grandfather and reciting chapters from his justly celebrated climb out of poverty and segregation.

Thomas’ efforts to depict himself as a reassuring moderate fly in the face of a paper trail that suggests a tendency to veer toward ideological extremes and an uncritical enthusiasm for conservative nostrums.

In recent years he has gone beyond expressing grave (and well-founded) doubts about the fairness and social costs of racial preferences; he has condemned wholesale virtually every Supreme Court decision going back to the 1978 Bakke case that has upheld any kind of preference for minorities or women, even as a last resort to put an end to an employer’s continuing, egregious discrimination against blacks.

Thomas has savaged Congress as a place of "little deliberation and even less wisdom." He has glorified Oliver North’s defiance (and by implication his deception) of the legislative branch, and has seemed to exude an unbalanced preference for presidential supremacy. He has praised as ”splendid” a speech in which businessman Lewis Lehrman denounced legal abortion as a "holocaust" (and with which Thomas now, conveniently, says he disagrees).

He has tossed off simplistic right-wing rhetoric on hard issues with an injudicious air of certitude, including even a cruel and. unfair public criticism of his own sister for taking welfare. His disdain for anti-poverty programs and exhortations to work hard hold out little hope for those mired in the bleak despair of the inner city.

In short, Thomas has sometimes seemed either ”a committed, hard-line ideologue," in the words of Sen. Patrick Leahy (D-Vt.), or a cynical careerist all too eager to pander to his party’s right wing. Thomas’ assertions that his past views had little relevance to what he would do on the Court, because he sought to shed his old opinions and avoid forming new ones, are at best naive. No judge can divorce his view of the law from his view of the cosmos as completely as Thomas claims to have done.

And, of course, President Bush was telling a transparent whopper when he declared that Thomas’ race "has nothing to do with this in the sense that he is the best qualified at this time.”

At the age of 43-a young 43 at that-Thomas seems still impressionable, even intellectually immature, and too unseasoned for elevation to the Supreme Court. His own assertion at his last confirmation hearing that he lacks "a fully developed constitutional philosophy" was an understatement. And while he is obviously a smart man with a fierce drive to excel, his writings and his guarded testimony leave in doubt whether he has the exceptional intellectual firepower to be a distinguished justice.

So why should the Senate confirm Clarence Thomas to a life-tenured position in which he could exercise vast influence over justice and life in America for more than 40 years?

Three main reasons:

• Because Thomas’ assertion last Friday that "I don’t think there is a person in this country who cares more about people who have been left out” rings true, notwithstanding his vast disagreements with traditional civil-rights leaders on how best to help such people. He also seemed sincere in pledging last week to ”carry with me the values of my heritage: fairness, integrity, open-mindedness, honesty, and hard work.”

• Because he has an impressive array of virtues that suggest the potential to be a conscientious, fair-minded justice who will grow in wisdom rather than clinging to the ideological enthusiasms that have captivated him so far. He seems a good, big-hearted, independent-minded man with a wide-ranging intellectual curiosity, an almost boyish zest for ideas, and a passion to do right leavened by a healthy sense of humor.

This, at least, is the view of people of varying political persuasions who know him well-friends, former subordinates, and others-and who have more recently made a study of him. These traits also came across in his moving opening statement last Tuesday and in some of his other testimony when he was not busy dodging traps laid for him by Democrats.

• And because Thomas seems a little more likely to hasten the Court’s rightward march-and a lot more likely to add valuable perspective-than whoever might be nominated and confirmed if he is rejected. Both points are critical.

It would be nice if we could look to President Bush to choose a more outstanding, less political nominee. But we can’t. And it might be a good idea for the Senate to give full scope to its power of advice and consent, by rejecting Thomas and any subsequent nominee who is not a genuine moderate of true distinction. But that’s not going to happen-not now, at least. Public opinion isn’t ready to support such an abandonment of the tradition of deference to the President’s choice, and the Senate knows it.

So even if it were to reject Thomas (which seems most improbable), the Senate would then cover its backside by rubber-stamping the first reasonably presentable, gray, Souteresque conservative (with the requisite blank slate on the abortion issue) that the president sends along.

Better, perhaps, to add a new justice who has felt the sting of segregation and the burden of poverty.

Nobody now on the Court could assert, as Thomas did in testimony on Thursday, that when he sees busloads of criminal defendants coming to his courthouse, "I say to myself almost every day, ‘But for the grace of God there go I.’ " Nobody else could recall the fear of being ”picked up and put on the chain gang for just standing on the corner."

Thomas’ evasiveness last week remains troublesome. At worst it suggests the insincerity of a political opportunist willing to say anything to get where he wants; at best the inartfulness of a man unskilled at articulating fine distinctions under the pressure of hostile questioning in the Senate arena.

For now (OK, so I’m weaseling), I choose the charitable interpretation. Thomas’ White House handlers have apparently persuaded him that the safest refuge from the onslaught of liberal Democrats is to suppress the intellectual exuberance for which he is known and adopt a hunkered-down, rope-a-dope defense.

Thomas was able to show under friendly questioning from Republicans that some of the contradictions between his record and his testimony last week were not as stark as they at first appeared, in part because his views on issues other than affirmative action are so fuzzy.

Would I be willing to give the benefit of so many doubts to a white nominee from a comfortable, upper middle-class background?

Probably not. Thomas gets a finger on the scales because of his up-from-segregation journey and the symbolic value of having at least one black justice.

So it is in some part because of his race that I lean toward supporting this man who has been so categorical in rejecting all racial preferences. Take it or leave it, Judge Thomas.