Hearing But Not Speaking

Among the many rituals of Washington, few are more predictable than a Nominee Summer. Typically it begins in July, when a crusty old Supreme Court veteran summons his strength one last time and bids farewell. Then, after a decent interval, the president steps into the portable press room that accompanies him as closely as the nuclear black bag, and names the lucky successor. On Capitol Hill, Judiciary Committee staffers cancel their shares in Rehoboth beach houses and instead read everything the new fellow has written. In private hideaways, law-school dons brief senators who never quite mastered constitutional doctrine. While interest groups duel by fax and direct mail, the nominee girds for the autumnal hearings, attends practice sessions in the White House basement and submits to intimate background checks. All this ends shortly after the Redskins play their first game. And so this week, Clarence Thomas will meet the committee. As the conventional wisdom has it, the nomination is his to lose.

The hearings have rituals of their own, too. The aim of the Democratic majority, led by Judiciary chairman Joe Biden of Delaware, will be to plumb Thomas's views. The questions won't be direct. The senators will ask him about "privacy"-legalese for abortion-and his brief but pregnant remarks four years ago on "natural law." Unless he develops a death wish, Thomas will sidestep and obfuscate, taking the traditional view that he shouldn't prejudge controversial topics that might come before him on the high court. Then the frustrated Democrats will have a choice: either pass him through or indict him for invoking a politic form of the Fifth Amendment. The latter requires uncommon nerve and unless the senators can find a consultant on daring to brief them, it won't happen.

Further complicating matters is Thomas's race and the fact that he is replacing the court's first black, Thurgood Marshall. The NAACP has opposed him, but other African-Americans have voiced support. The failure of groupthink has made the political equation even more difficult to figure. Lurking behind all the maneuvering is the memory of what happened to the nomination of federal appeals court Judge Robert Bork in 1987. Unlike Thomas, Bork had a distinguished and prolific academic career in which he pronounced many controversial views. Then he chose to try to explain himself to the senators. Under severe attack from the left, Bork lost. This time the White House has conducted a meticulous public-relations campaign, responding to each charge raised by the opposition. And last week conservative groups launched a preemptive strike: a TV ad that argued that liberals Biden, Ted Kennedy and Alan Cranston were not ethically "fit" to judge Thomas. Coproduced by the team responsible for the Willie Horton spots in 1988, the ad mentioned each man's skeletons: Kennedy's cheating and Chappaquiddick, Biden's plagiarism, Cranston's S&L hanky-panky. In Washington, this "hardball" stirred the politico-media echo chamber; the White House disowned the ads, and the rest of the nation yawned and switched channels.

The anti-Thomas forces concede that he is a difficult target. Ralph Neas of the Leadership Conference on Civil Rights complains that the White House has "built an almost mythlike aura" around Thomas. But he insists the battle is still "winnable." Only, however, if onetime seminarian Thomas forgets his vow of silence.