Although the eventual confirmation of Clarence Thomas as a justice of the U.S. Supreme Court seems likely, it remains unclear whether the Senate will vote on the nomination in time for him to join the Court by the start of the new term on Oct. 7.
The timing of the vote could have an impact on a major school-desegregation suit that will be the first case heard by the Court this term.
The Senate Judiciary Committee was moving last week to wrap up its hearings on Judge Thomas’s nomination. It heard another day of testimony from Mr. Thomas, then aired the views of dozens of supporters and critics of his appointment to replace Associate Justice Thurgood Marshall.
The committee is expected to vote on the nomination by the end of next week. The full Senate must then approve the nomination before Judge Thomas, who now serves on the U.S. Court of Appeals for the District of Columbia Circuit, could be sworn in.
Court observers have speculated about what Justice Marshall might do if his successor is not yet confirmed when the new term begins. In disclosing his plans to step down in a letter to President Bush in June, the Justice wrote that his retirement would become effective “when my successor is qualified.”
Justice Marshall has continued to vote over the summer on some routine Supreme Court orders and has not yet moved out of his chambers, court officials said last week.
Would Marshall Hear Case?
The question takes on added urgency for those awaiting the arguments in Freeman v. Pitts, (Case No. 89-1290), a school-desegregation case from DeKalb County, Ga., that the Court is set to hear as soon it convenes on Oct. 7.
In the Freeman case, the Court will address whether a school board under a desegregation order must eliminate student racial imbalances caused by demographic shifts in housing patterns. The case is expected to provide further guidance on the issue of when previously segregated school systems may be freed from federal-court supervision. Some observers have suggested that, if Mr. Thomas is not confirmed in time, Justice Marshall might sit for the case, and possibly others.
Toni House, the Supreme Court’s spokesman, said last week that Justice Marshall “simply hasn’t made up his mind” about when to make his retirement effective.
She said she believes that Justice Marshall’s primary concern in delaying his retirement is the difficulty the Court faces when there is a vacancy for an extended period.
Ms. House said that even if Justice Marshall heard arguments early in the term, his votes would not be counted if the opinions were issued after his retirement. The Court may order reargument of any cases not heard by all the Justices, although it does not always take that step.
Some observers believe that Judge Thomas would bring to the Court radically different views on school desegregation than those held by Justice Marshall.
Questions on Desegregation
In questioning in his final two days before the Judiciary Committee, Mr. Thomas discussed some key Supreme Court precedents on desegregation, but he avoided detailed discussion of his past writings and speeches on some of the cases.
For example, the judge was asked whether the precedent set in 1971 in Swann v. Charlotte-Mecklenburg Board of Education, which upheld the assignment of students by race and the use of busing as a desegregation remedy, should be changed.
“I have no agenda to change existing case law,” Judge Thomas said. He added that his concern about the case was that “if we could demonstrate that the educational opportunities were improving for minorities, whether it is [through] busing or any other technique, then use it. But make sure that we are helping these young kids.”
Mr. Thomas wrote in a 1988 article for the Cato Institute that Swann was one of “a disastrous series of cases requiting busing and other policies that were irrelevant to parents’ concerns for a decent education.”
Judge Thomas was also asked whether he thought a federal judge in Kansas City, Mo., went too far by ordering a tax increase to fund a desegregation plan. In a 1990 ruling in Missouri v. Jenkins, the High Court said the judge could not order the tax increase himself, but could order the school board to impose it.
The nominee declined to discuss the Missouri case specifically, but he said “I think there are some who certainly would” consider such an order to be “judicial activism.”
A version of this article appeared in the September 25, 1991 edition of Education Week as Confirmation of Thomas Appears Assured As Senate Committee Hearings Near Close