Common Sense Nominee

If the resignation of Justice Thurgood Marshall was the end of the U.S.  Supreme Court's liberal era, the nomination of Judge Clarence Thomas is the beginning of a conservative era that could prevail as long.

Thomas is only 43 years old.  Marshall is 83 and served 24 years on the nation's highest court.  Thomas could put in 40 years by the time he is 83.

His confirmation by the Senate could lock up the court in a non-liberal stance and turn the Court into an interpreter of the Constitution - in contrast to the previous half century when the Court created liberal measures even a Democrat Congress would not.

Ideological labels perhaps are not the most meaningful description of Marshall's and Thomas' judicial philosophies.  Both characterizations have become pejorative.  It is more accurate, and more fair, to say Marshall was "compassionate" and Thomas is "common sense." Both qualities are needed on the bench.

Thomas is a black American who rose from a dirt-poor Georgia background by virtue of ambition and hard work.  He and his mother were abandoned by his father.  At age seven Thomas went to live with his grandparents, who reared him with strict discipline as a Roman Catholic.

In responding to President Bush's nomination, Thomas choked with emotion when he acknowledged his mother, grandparents and nuns at the black parochial school he attended as a youngster.  He spent his first year in college studying for the priesthood.

President Reagan appointed Thomas chairman of the Equal Employment Opportunity Commission.  Thomas' seven year tenure was marked by controversy over his opposition to affirmative action, school bussing, and job quotas for minorities.  He steadfastly resisted pressure by special interest groups for favored treatment.

Thomas stressed individual rights rather than group rights - a stand that put him at odds with the National Association for the Advancement of Colored People (NAACP) and the American Association of Retired People (AARP).  Both organizations are expected to express ''concerns'' about his appointment.

The principal issue that the Senate will quiz Thomas about is abortion.  Senators Alan Cranston, D-Calif., and Howard Metzenbaum, D-Ohio, already have declared their intention to make Thomas declare how he will decide challenges to Roe v.  Wade, which legalized abortion in 1973 - and to vote against confirmation unless he promises to vote their way.

Abortion rights advocates have reason to worry.  His Catholic upbringing would seem to lead him against abortion.  More significant is his philosophy of individual responsibility, which pro-choicers interpret as holding women to chastity and motherhood.

Court observers generally agree that Roe v. Wade is headed for modification regardless of Thomas.

Thomas' critics assert he would not bring "black experience" to the court.  This prerequisite has been codified as racial discrimination and poverty.  The experience of black person working and succeeding within the system - by dint of personal effort - is anathema to the black stereotype today's black leaders perpetuate.

Liberals also claim fear that Thomas "will not follow legal precedent" - that is, will not uphold past 5-4 court decisions that found justification for civil rights not in law.  They point out in horror that the court session just ended overturned five decisions handed down by previous liberal courts.

The latter charge is true.  However, the action is not unique.  Previous liberal courts did the same thing against conservative decisions on three occasions.

Bush has backed liberals into a corner with his nomination of a black Catholic.  If the Senate derails the appointment, Bush will be free to nominate a white conservative.  Leverage belongs to him, not the Senate Judicial Committee.

After much huffing and puffing, liberals probably will accept half a loaf as better than none.  At least, Thomas keeps alive the theory that one seat on the court belongs to a black - a judicial quota, if you will.

Another reason for eventual liberal acceptance is that another conservative on the bench won't make any difference.  Recent 6-3 votes indicate that conservatives already are in the driver's seat even when the "knee-jerk" liberal (Marshall) and the two "moderates" (Powell, Stevens) vote as a block.

The civil rights movement led by the Rev. Martin Luther King has largely succeeded in the legal sense.  What remains is social change, which is a different challenge.  The time has come for blacks to build on that accomplishment and move on from group aid to individual aid.

Affirmation of Thomas will signal an important advance in social change - the guarantee of individual opportunity by legislation rather than by judicial fiat.

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