The lessons of Thomas

Anthony Lewis

October 01, 1991|By Anthony Lewis

Boston -- WHATEVER happens now to Judge Clarence

Thomas, the confirmation process in his case has suggested some lessons. They are for both of the parties constitutionally concerned with judicial appointments, the president and the Senate.

President Bush, if he were prepared to approach this kind of political experience with an open mind, would see that cynicism is not a good idea in choosing members of the Supreme Court. In saying that he picked Thomas because he was the best-qualified person in the country, Bush only shamed himself.

In the end it was the glaring lack of qualifications that produced the rather surprising vote in the Senate Judiciary Committee, 7 to 7.

Several of the Democrats had gone into the hearings expecting to give the president leeway and vote for Thomas. But they were put off by his obvious unfamiliarity with the Supreme Court's work -- his lack of demonstrated interest in it, really -- and the paucity of his legal experience.

Is it naive to think that presidents should make a genuine effort to pick for the court those best qualified by wisdom, experience and reputation? Perhaps it is. Presidents of both parties have weighed politics and friendship heavily in their choices.

But when presidents have chosen on the merits, it has done them no harm. To the contrary.

The outstanding example was President Hoover's choice in 1932 of Benjamin Cardozo, the revered chief judge of New York's highest court. It was not a balanced appointment: It added a third New Yorker and a second Jew to the court. But it was universally hailed and brought luster to the politically troubled president.

The Senate has just as unwelcome a lesson to learn from the Thomas confirmation hearings. For the members of the Judiciary Committee left many viewers with the impression that they were pompous, preening, unskilled as examiners and generally useless in terms of helping us appraise the nominee.

With the exception of Arlen Specter of Pennsylvania, the Republicans were patsies, seemingly uninterested in anything except defending the president's nominee. Most of the Democrats were focused on getting Thomas to say what he could not properly say: how he would vote on the issue of abortion.

No judicial nominee should answer such a question. In fact, Supreme Court nominees did not even appear before the Judiciary Committee to answer questions until 1939, when Felix Frankfurter did, and he refused to reply to any that might remotely engage issues before the court.

A federal judge said to me, after the Thomas hearings, that it might be better to go back to the pre-1939 tradition and not expect nominees to appear. Then, he said, "the president would be encouraged to select a candidate with a substantial, compelling record, and the public would be spared the spectacle of nominees being required repeatedly to give silly answers to inappropriate questions."

Another possible course was suggested by Philip Elman, who was Frankfurter's law clerk and went on to a career largely in public service, including 17 years in the solicitor general's office. He said that nominees can properly be asked -- and should be -- about larger questions of Constitution history.

For example, the Fifth and 14th Amendments protect individuals from deprivation of "liberty" without due process of law. The Supreme Court has from time to time defined that "liberty" to include the right to study a foreign language in school, and the right of black children in the District of Columbia to attend unsegregated schools. Were those cases rightly decided? What your view of the scope of that liberty?

Judge Robert Bork was asked some questions like those, and forthrightly answered them. Conservatives like to say that he was denied confirmation because he had such a full record of expressed constitutional beliefs. But what really mattered was that the record -- and his answers, hostile to enforcement of such liberties -- went against the grain.

In any event, the structure of the Senate hearings should be changed. It would be best of all if the senators could curb their egos and let counsel, one for each side, ask the questions. That might introduce some continuity and logic into a constitutional process of profound importance.

Anthony Lewis, a Pulitzer Prize-winner, has written on legal matters for the New York Times for more than 25 years.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.