A contempt for Congress

Anthony Lewis

September 16, 1991|By Anthony Lewis

THE MOST disturbing trend in the contemporary Supreme Court is its exaltation of presidential power. The court has tilted the constitutional balance toward the executive, at the expense of Congress and individual rights.

Clarence Thomas will almost certainly intensify that trend if the Senate confirms his nomination to the court. For in his public comments over the last few years he has displayed hostility toward Congress and a worship of the presidency going beyond even this executive-minded court.

"There is little deliberation and even less wisdom in the manner in which the legislative branch conducts its business," he said in 1988.

Congress is fair game for criticism, and there was a basis for some of Thomas' complaints. He was right, for example, that some committee and subcommittee chairmen act as if they are entitled not just to scrutinize executive agencies but to make their decisions.

But the Thomas attacks went far beyond such particulars. He was sweepingly contemptuous of Congress.

"Ollie North did a most effective job of exposing congressional irresponsibility," he said after North's testimony to committees investigating the Iran-contra affair. "He forced their hand, and revealed the extent to which their public persona is a fake."

Oliver North made one of the most extreme claims of presidential power in American history. It was that he, as a presidential agent, had a right to ignore the Constitution and laws in order to carry out a policy that the president wanted: aiding the contra rebels in Nicaragua despite a congressional ban on aid.

In a series of speeches around the country in 1987 and 1988, Thomas praised Oliver North and ridiculed Congress.

He said the congressional investigation "beat an ignominious retreat before Colonel North's direct attack on it, and by extension (on) all of Congress." He said North had made it "perfectly clear" that Congress "is out of control."

Another striking example of his worshipful preference for presidential over congressional power was his attitude toward the statute calling for judicial appointment of an independent counsel to investigate charges of wrongdoing by executive officials.

Congress passed the law after the Watergate experience, when President Nixon tried to shut off the investigation by firing special prosecutor Archibald Cox.

The radical right opposed the statute as an intrusion on presidential power. It claimed, among other things, that appointment of the counsel by judges was unconstitutional -- an extraordinarily flimsy claim, since an explicit clause of the Constitution allows Congress to vest appointments in the courts.

In 1988 the Supreme Court resoundingly rejected the attack on the independent counsel statute. The vote was 7 to 1, the opinion by Chief Justice Rehnquist.

Thomas bitterly attacked the decision, which he called "the most important court case since Brown vs. Board of Education" -- the 1954 school segregation decision. He said "conservative heroes such as the chief justice failed not only conservatives but all Americans" in upholding the special prosecutor law.

On the witness stand before the Senate Judiciary Committee, Thomas has tried to paint his past speeches as irrelevant. They were politics, he has suggested, but now he is a judge -- and his public positions will have no effect on how he decides cases.

He gave such an answer when Sen. Arlen Specter, R-Pa., tried to explore his disparaging comments on Congress. "There may be disagreements when one is in the executive branch," Thomas said, "but those disagreements cease and policy-making debates cease when one goes to the judiciary."

It is a touching notion, that years of strongly expressed beliefs will be forgotten when someone goes on the bench. But it defies common sense, human nature and experience.

A man who exalts Oliver North must have a compelling belief in presidential supremacy. Oliver North was a dangerous subverter the Constitution. It seems to me extraordinary, and unacceptable, that a promoter of his cause should be one of the nine ultimate enforcers of the Constitution.

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