That’s when they blew Robert H. Bork out of the juridical water in his bid for a seat on the U.S. Supreme Court. Within minutes of President Reagan’s nomination of Bork, Edward M. Kennedy was dashing off to the Senate floor, where he skewered Bork for his “reactionary” and “Neanderthal” views. The liberal interest groups then piled on, orchestrating a grass-roots campaign that buried Capitol Hill in anti-Bork postcards. When Bork finally testified at confirmation hearings in September, his smug stridency sealed his fate. The Senate rejected the nominee 58 to 42.
Now the liberals again smell confirmation blood. Kennedy may have private distractions, and the interest groups are a month behind the schedule they established in the Bork summer. But the liberal posse has pledged to fight President Bush’s nomination of Clarence Thomas to the high court with the vigor of four years ago. Last week the anti-Bork battery seemed fully charged: five major civil-rights and labor groups announced their opposition to Thomas, joining several women’s and abortion-rights organizations. The key hit on Thomas came from the executive board of the NAACP, the nation’s largest civil-rights organization, which voted 49 to 1 against him. This week the Leadership Conference on Civil Rights is expected to join the fight, and the American Association of Retired Persons may be next. “Let’s not kid ourselves,” says a White House adviser. “They’ve got some momentum.”
Maybe so, but can Thomas really be beaten? The odds still favor confirmation. Under two scenarios might Thomas lose. Some damning revelation will turn up about his personal life. Or he’ll Bork himself, becoming too arrogant and doctrinaire at the confirmation hearings. Neither seems likely. The administration’s ethics cops have already plumbed his background, and his handlers are coaching him not to play ideological Ping-Pong with the Senate Judiciary Committee. He’s probably wise not to grow a scraggly beard, either.
At the White House itself, the effort is to focus on The Story. Who cares about constitutional outlook, when we can retell the tale of the poor black lad from rural Georgia who worked his way up to the marble steps of the highest court in the land? Last week 45 residents of Thomas’s hometown of Pin Point-some of whom have never even met Thomas-came to Washington to proclaim his goodness. Bork himself commends the administration’s tactics. “There needs to be a countercampaign,” he says.
But even in the face of such image-mongering, assume for a moment that Thomas could be defeated. Why bother? Bush surely will respond by selecting someone just as conservative and less personally compelling. Maybe a white, or a Hispanic judge with no record at all-a Spanish-speaking David Souter. Either way, it won’t be the second coming of Thurgood Marshall. Such was the dilemma the NAACP faced: defeat a black conservative and get a nonblack conservative instead. Civil-rights sources acknowledge that Thomas’s race was a “complicating factor” in the NAACP decision. In the end, though, the members opposed him because his civil-rights record was “inconsistent with the historical positions taken by the NAACP,” said board chairman William Gibson.
The Bork episode illustrates how futile it can be to oppose a president’s choice. After Bork was defeated and Douglas H. Ginsburg’s nomination went up in pot smoke, Anthony M. Kennedy breezed through confirmation by being cheerfully evasive. Yet Kennedy went on to vote with Justice Antonin Scalia, the court’s archetype conservative, 88 percent of the time from 1987 to 1990. Kennedy’s basically all Bork with no bite.
Liberals insist the fight paid off. Kennedy’s better than Bork, they argue, if only because he isn’t as smart and seems more open-minded. And they say that David Souter, who made it to the court last year, is better than the sort of ideological nominee Bush might have picked if Bork had never happened. There’s one other thing liberal groups might mention: institutional self-interest. The 1987 campaign boosted profiles, memberships and coffers. Some sources say that People for the American Way and the National Abortion Rights Action League raised more than $1 million apiece at Bork’s expense.
Cash aside, going after Thomas could still prove worth it. Forget Kennedy and Souter. Go back to the good old days of Richard Nixon. In 1969 and 1970, civilrights organizations helped defeat two of his court choices, Clement F. Haynsworth Jr. and G. Harrold Carswell. On the third try, Nixon picked Harry A. Blackmun, a moderate who was easily confirmed-and went on to author Roe v. Wade, the landmark decision giving women the right to an abortion. Liberals preach this model and warn that Thomas is just first on their list. That’s a lot of bluster from the left. But if they’re right, the fun for liberals is just beginning. BOB COHN with DAVID A. KAPLAN
