Justice for Clarence Thomas

As this article goes to press, the nomination of Judge Clarence Thomas to the Supreme Court apparently hinges on how many senators accept the charges made by Professor Anita Hill, of the University of Oklahoma Law School, that Thomas sexually harassed her when she was his assistant at the Department of Education and the E E O C Though the Senate Judiciary Committee knew of the accusation before it voted on the nomination, no member of that committee mentioned it publicly until it was leaked to the press only two days before the whole Senate was scheduled to vote on the nomination. Thomas’s supporters were ready to insist on a vote as scheduled, but so much of the public was outraged at the nearly all-male Senate’s seeming indifference to a charge of sexual harassment, and so many senators who had planned to vote for him were reluctant to do so without further investigation, that the supporters agreed to a one-week postponement, and the Judiciary Committee undertook to hold further hearings, restricted to investigating these and perhaps other charges of similar misconduct, at which Thomas and Hill agreed to appear.

The Senate plainly mismanaged the matter, and the reputation of the Judiciary Committee and of senators who opposed a delay has been damaged. But it would be very unfortunate if these serious failings obscured other, more structural and pervasive, defects in the nomination process that the hearings had already revealed. Before Hill’s allegations were made public, even Thomas’s opponents predicted that he would be confirmed by a comfortable if not great margin. The Senate was ready to overlook doubts about his qualifications that are in the long run more consequential for constitutional law than those on which the public’s attention became concentrated after Professor Hill’s charges became known.

When the Judiciary Committee began its hearings, Senator Herbert Kohl of Wisconsin laid down a test he said the nominee must meet. Thomas had said in 1990, when the committee was considering his appointment to the District of Columbia Circuit Court, that he did not then have “a fully developed constitutional philosophy.” Kohl said that though the lack of such a philosophy did not disqualify a candidate for the Circuit Court, the Supreme Court was different. “In my judgment,” he said, “if you cannot articulate a constitutional philosophy, one that includes full safeguards for individuals and minorities and that also squares with your past statements, then in my opinion you are not qualified to sit on the Supreme Court.”

Thomas flunked that test in a spectacular way, as even some of the senators who in the end voted to confirm him conceded. He spent his five days of testimony, in fact, denying having any “constitutional philosophy” at all, and trying to explain away the past statements Kohl had in mind. Presumably his White House coaches urged him to adopt that know-nothing strategy. Robert Bork had published radical and highly controversial opinions about constitutional law before his nomination …

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