In what may be a triumph of hope over realistic assessment, we recommend the confirmation of Judge Clarence Thomas as an associate justice of the Supreme Court. We do so in the belief that he could become as good a justice as any nominee President Bush is likely to name to this vacancy.
To dispose of the politics of the nomination first: Obviously this president, having run on a platform that took positions opposite those of his Democratic opponent's on such high-profile issues as a woman's right to an abortion and minorities' right to the
preferential treatment of affirmative action, has the right to nominate to the Supreme Court someone with compatible views. Judge Thomas appears to be clearly compatible, though there were moments during his testimony before the Senate Judiciary Committee when he indicated more open-mindedness on those issues than some conservative Republicans would prefer. In any event, unless the Democratic majority in the Senate is willing to ,, withhold confirmation from all nominees who are "wrong" on these issues, it gains nothing by defeating Judge Thomas.
What about Judge Thomas' credentials? Most, but not all, members of the American Bar Association's Standing Committee the Judiciary found him "qualified." This is the equivalent of a B-. Not very good for the highest legal post in the land. But that rating was based largely on Mr. Thomas' record at the Equal Employment Opportunity Commission, before he became a court of appeals judge in 1990. His record on the court, the committee said, was "particularly persuasive" regarding his "intellect, analytical ability and writing skills." Had he been on that court longer, his ABA rating for this nomination probably would have been "well qualified." Judge Thomas is analogous to a good young pitcher who needs a couple of more years at Rochester before becoming an Oriole. His judicial skills may not be major league in his first few terms on the Supreme Court, but after that, there is reason to expect the highest professionalism.
On some controversial matters, Judge Thomas was vague to the point of stonewalling the Judiciary Committee. This is cause for concern. Especially troubling was his insistence that he had never even discussed Roe vs. Wade -- the case of the era -- in his entire legal career. But given the fact that the last two Supreme Court nominees -- Justices Anthony Kennedy and David Souter -- engaged in similar vagueness and parrying and were confirmed, while the nominee just before them, Robert Bork, answered many questions on controversial matters in detail and was not confirmed, it is easy to understand the tactical decision.
Supporters of the Thomas nomination say his up-from-Pin Point background will make him a good and sympathetic justice, having overcome both poverty and racial segregation. That can be overstated, but having a diversity of life experiences on the Supreme Court is important. At that level, there is more to decision-making than just legal knowledge and intellect. As Sen. Arlen Spector told the NAACP's Benjamin Hooks on Friday, "I would feel more comfortable having someone in that [Supreme Court] conference room that understands the African-American experience."
Finally, will Justice Thomas be unpredictable? A witness told the Judiciary Committee on Thursday, "If Bork was wrong for the court, then Thomas is wrong for the court." True, both nominees had a long paper trail of controversial comments and writings. But Judge Bork's were primarily those of an academic, who is expected to say what he believes. Judge Thomas' were primarily those of a member of an administration, who is expected to further political policy. More than one Supreme Court justice has changed his tune after giving up his advocate's post for life
tenure on the court of last resort.