Swearing-in gives new reason to doubt Thomas

ROGER SIMON

October 25, 1991|By ROGER SIMON

Will I ever stop doubting Thomas?

I am not sure. He keeps making it so very difficult.

I was ready to put to rest the matter of Clarence Thomas and the charges of sexual harassment made against him by Anita Hill. The Senate had confirmed his nomination to the Supreme Court by a four-vote margin last week and the White House threw a big bash for him last Friday.

The Marine Band played. A thousand people were invited. And superstars like Sly Stallone, Reggie Jackson and John Doggett III showed up.

True, the day produced some strange moments. Such as when Thomas' wife, Virginia, hugged Doggett, certainly one of the least credible and most oleaginous witnesses ever to testify on Capitol Hill, and said, "I love you."

But what the heck. A party is a party.

Though there were those who thought the timing of this particular party was in somewhat bad taste.

The wife of the Chief Justice of the United States, Nan Rehnquist, had died the day before. And the Supreme Court had sent a request to the White House that the ceremony for Thomas be delayed.

The White House thought about it and then refused. (The Chief Justice, in mourning, did not deliver the oath to Thomas as he normally would have. Justice Byron White filled in.) But what was the hurry? Did the White House for some reason want to speed the swearing-in process and get Thomas onto the court as soon as possible?

It certainly began to look that way. Especially when the White House made a grave mistake: It publicly revealed how swiftly it wanted to get Thomas safely into his Supreme Court robes.

To become a justice of the Supreme Court, one must take two oaths. The first, which Thomas took at his White House party last Friday, is the one required by the Constitution of all federal

officials. A second oath, required by a law passed in 1789, is required of all federal judges.

Thomas' second oath was scheduled for Nov. 1 in a ceremony that would be attended by all members of the Supreme Court.

Last Friday, however, the White House announced that the second oath was not really required and that Thomas would become a member of the court after taking his first oath.

The White House went so far as to distribute research, done by a White House lawyer, claiming to support this position.

But in what only could be called a rare, direct rebuke of the White House, Justice White declared during the ceremony that Thomas would not become a member of the court until "10 o'clock on Nov. 1" when the the second oath was to be administered.

That was only 14 days away. So what was the White House's hurry? Nobody said.

Then the real shocker came Wednesday: Thomas decided he could not wait the remaining nine days until Nov. 1. He called Chief Justice Rehnquist and requested that his second oath be administered that day. A few hours later it was, in a secret ceremony not attended by the press, public, or other justices.

Again, what was the hurry?

Two reasons were given: Through a spokesman, Thomas said he wanted to get his clerks on the Supreme Court payroll. And Sen. John Danforth, R-Mo., Thomas' chief sponsor, said through another spokesman that Thomas wanted to begin working on Supreme Court business.

Three questions are raised, however, by Thomas' sudden request for an immediate swearing-in:

QUESTION ONE: Was there any real economic necessity that required Thomas and his clerks to be sworn in immediately, instead of waiting nine more days?

ANSWER: None is apparent. Thomas and all his clerks but one already have very nice jobs. Only seven of the nine days are working days, and the extra money they picked up is hardly significant.

QUESTION TWO: Did court business require Thomas to be sworn in early?

ANSWER: No. The court does not meet again until Nov. 1, the date Thomas was to have taken his second oath. True, Thomas && would need to be sworn in to see secret court documents. But those documents relate to previously argued cases and Thomas is forbidden from rendering judgments on previously argued cases.

QUESTION THREE: Did Thomas want to be sworn in early because of rumors that new accusations against him might surface?

ANSWER: This is possible. Some news organizations are still pursuingthe Thomas story. And Washington has been buzzing with rumors of new allegations ever since the Senate confirmed Thomas.

Those supporting Thomas scoff at this. But why else would Thomas suddenly demand on Wednesday morning to be sworn in Wednesday afternoon?

Had new charges surfaced against Thomas before he officially became a member of the court, he and the White House would have come under enormous pressure to delay his final swearing-in until after another investigation.

But as a full-fledged member of the Supreme Court, Thomas is virtually invulnerable.

The Constitution does demand "good behavior" from Supreme Court justices.

Thomas could be impeached by a majority vote of the House for "high crimes and misdemeanors" and expelled from office by a two-thirds vote of the Senate.

(Only once in history has a Supreme Court justice been impeached. In 1804, Justice Samuel Chase, a signer of the Declaration of Independence and a former Chief Justice of Maryland, was impeached by the House on a strictly partisan vote. His foes failed to get a two-thirds vote in the Senate, however, and Chase remained in office.)

But some legal scholars believe that Thomas could not be impeached for anything he did before becoming a member of the Supreme Court. And, therefore, his new robes make him "bullet-proof" against accusations of past misconduct.

Is that why Thomas wanted to get on the court so quickly, so quickly that he could not wait even nine more days?

We do not know.

Clarence Thomas may be a man with nothing to fear.

He may be a man whose conscience is clear.

So why doesn't he act that way?

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