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THE LESSER EVIL THOMAS IS ENTITLED TO BENEFIT OF DOUBT
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THE LESSER EVIL THOMAS IS ENTITLED TO BENEFIT OF DOUBT

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Most Americans seem to be of one mind about this much: Last weekend's discordant coda to Clarence Thomas' confirmation was very troubling. Sure, it was often engrossing television, but in the end most of us felt a little ashamed at having sat there watching muck being stirred in a marble temple of politics.Later today, the Senate votes. Whatever the various senators' intentions may have been before - nose counts then put Thomas over the top - what they do today will go down in history as reflecting a single judgment: Anita Hill was either telling the truth, or she was not.

If what she said about her former boss's conduct nearly 10 years ago was true, then Clarence Thomas is a baldfaced liar and plainly unfit for the Supreme Court or any other position of trust. But if Hill's account is false, then it would be a towering injustice to reject the nomination because of her accusation.

When the last word of testimony was recorded early Monday morning and the klieg lights went out, there was no clear answer. The Senate was left to examine a lengthy transcript and choose between two unlikely alternatives. Either Clarence Thomas had a dark side, an appalling, sick character flaw, or Anita Hill has a pathetic character flaw of her own. One or the other was lying. We have two credible people; the Senate is asked to brand one a liar. The opinion of a polygraph operator, based on unreliable evidence, is no help.

Because the evidence is inconclusive, we still think Clarence Thomas should be confirmed. When all is taken into account, he is entitled to the benefit of the doubt.

Faced with an impossible, but inescapable, choice, senators may have no alternative but to back into their decision. That is, they should weigh the consequences of a mistake and choose the lesser evil.

Even his enemies concede that Thomas and his family have undergone a trial by ordeal in this matter. If he is telling the truth, Senate rejection would mean a magnum increase in the injustice.

Worse, it would mean that any aspirant to high office henceforth would be vulnerable to defeat by an unsubstantiated accusation.

But what if Thomas actually did inflict the verbal indignities on a young female employee that Anita Hill described on national television last Friday? What if he did all these things and then lied about it under oath and before millions of his countrymen? What if that man became a justice of the Supreme Court?

It would mean forgoing an opportunity to make an example of conduct that is clearly unacceptable, particularly by employer against employee. But given the ambiguity of the facts, the example would be of little use. Only those with a firm bias against Thomas would see it as justice. And, guilty or innocent, Thomas has unquestionably been punished.

It would certainly be regrettable to have a liar on the court, but it's a risk that must be taken. It's a risk we always take. Nothing in all those hours of testimony was conclusive as to the veracity of either Thomas or Hill.

A Senate confirmation does not require certainty beyond a reasonable doubt - the criminal law standard of proof - but it demands that at least the greater weight of evidence be on the accuser's side before a nominee is rejected for misconduct. Senators voting tonight are of course free to vote as they like for any reason or for no reason. But to reject Clarence Thomas on the strength of this highly troubling - but unresolved - accusation would be wrong.

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