The Boston Globe

BOSTON—What must Justice Marshall think as he sits, stewing, over the nomination of Clarence Thomas: That if you live long enough, the last sense you need is a keen sense of irony.

How ironic to spend a lifetime opening doors for American blacks and to see a successor coming through those doors who disagrees with much that you hold dear. How ironic that your seat may be taken by a man who profited from remedies that you support and that he opposes.

What was it Justice Marshall said in his cranky farewell press conference? Don’t use race as a ploy or an excuse for “doing wrong,” he advised the president. Many assume that he had Thomas—that front-runner of conservative black candidates—in mind.

Without Justice Marshall, would Judge Thomas have stood Tuesday on a lawn in Kennebunkport and heard the president say that “the fact that he is black and a minority has nothing to do with this … ” Without a hard-won consensus that the nation’s diversity should be reflected in the court, could Thomas have been chosen as “the best qualified”?

Harvard Law School’s Christopher Edley Jr. ticks off this nominee’s “modest” legal talents during eight years as the controversial head of Reagan’s Equal Employment Opportunity Commission and during a year and a half on the U.S. Court of Appeals.

“No one can look at Clarence Thomas’ record and find the claim he was the best qualified person remotely credible,” concludes Edley, “He’s certainly qualified but to say more than that requires heroic efforts to keep a straight face.”

With Cambridge understatement, he adds “This isn’t like putting Colin Powell on the ticket.”

Of course, there is enough irony here for Justice Marshall to pass around. Some must be shared with Thomas himself. This proponent of bootstrap conservatism, this fervent opponent of racial preference and quotas must have had his own thoughts on the president’s lawn.

The first half-dozen questions from the press were directed at him as an Affirmative Action Candidate, the filler of a quota of one on the Supreme Court. Did this reinforce Thomas’ belief in the debilitating side effects of affirmative action? Did he worry at all about benefiting from what he abhors?

Only David Souter made Thomas’ appointment seem less glaringly racial. Because of Souter, it can be claimed that the Bush administration is an equal opportunity employer of mediocre legal minds of all races.

For conservatives the ironies multiply. Diversity has become such a mainstream idea that even those who favor race-blindness can’t be blind to race. Indeed, the runners-up qualify for a Supreme Court Diversity Sweepstakes: Edith Jones, the perennial bridesmaid, and Emilio Garza, the Hispanic contender.

But what of liberals, especially the civil rights groups at odds with Thomas in his years as a Reagan official? Thomas’ life story resonates eloquently with them.

A dirt-poor Southern boy, he was deserted by his father and raised in the segregated South by his grandparents. “As a child,” he said, “I could not dare dream that I would ever see the Supreme Court, not to mention be nominated to it.”

This is the life experience, the pluralism of background, that liberals want to see reflected in the court. It is hard for civil rights groups to turn away from a black man who has made it in America. It will also be hard to support a man who took a familiar route to an opposing position.

“There are going to be a lot of blacks and many progressives who will want to swallow hard and accept Thomas precisely because they believe in the pursuit of diversity, when the irony is that Thomas doesn’t believe in that,” says Edley, who adds, “I think it’s a really bitter pill.”

Civil rights are not all that is at stake in this appointment. We know little about Thomas’ other views. But this confirmation hearing promises to be an historic exercise in racial politics.

Conservative opponents of racial preferences will do contortions to deny that they are promoting a black man to a black seat. Liberals committed to the advancement of minorities will express unease about advancing this member of a minority.

Someone will suggest that true diversity is promoting a black conservative. Someone else will claim that blacks have arrived when they can oppose “one of their own.” Before it is over, irony of all these ironies, anti-quota Republicans may have filled a quota while liberals may have proved that they are race-blind by opposing Clarence Thomas.

And what will Justice Marshall make of this odd ideological gavotte? Will he—should we—be proud of how far we have come, or merely bewildered?