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, and these caused his ultimate defeat. Justices Kennedy and Souter, on the other hand, had published almost nothing about constitutional theory; they were easily confirmed, though their votes on the Court, so far, have justified the trust conservatives placed in them.
Thomas is in some ways an exceptionally appealing candidate for the Supreme Court. He is a black man born into poverty and racial disadvantage who nevertheless achieved considerable success, and some of his supporters believe that a justice from that background will eventually raise the level of the Court’s compassion for the unfortunate. But his record is much more like Bork’s than like that of either of the two other successful nominees. Thomas was chairman of the Equal Employment Opportunity Commission in the Reagan administration, and, as one of the few blacks in that administration, he delivered several speeches to conservative groups. He was on the board of advisers of a conservative black journal, and signed an important report on family policy which called, among other things, for the appointment of justices to the Supreme Court who would vote to overrule Roe v. Wade. On several occasions he denounced affirmative action programs for blacks and other minorities, in spite of having himself been admitted to Yale Law School through such a program, and he has shown strange insensitivity to the problems of blacks less successful than himself, even suggesting that his own sister was a welfare scrounger. He condemned the Supreme Court’s decision upholding the law under which independent prosecutors can be appointed to investigate officers of the executive branch, and complained that even Chief Justice Rehnquist had voted to uphold that law, remarking that “we can no longer rely on conservative figures to advance our cause.”
Two of his published views were particularly frightening to constitutional lawyers: they were, in fact, far more extreme than anything Bork has written. In 1987, in a lecture to The Heritage Foundation, Thomas enthusiastically endorsed an article by Lewis Lehrman, a trustee of the foundation, in which Lehrman had declared that according to the “natural law” a fetus has an inalienable right to life, and that Roe v. Wade was therefore a terrible mistake. Thomas said that Lehrman’s article “on the Declaration of Independence and the meaning of the right to life is a splendid example of applying natural law.”1 But if Lehrman is right, then it follows not just that states must be permitted to make abortion criminal if a majority of their voters so wish, but that all states must be required to make abortion a crime from the moment of conception, whatever their voters think. No past nominee, including Bork, has ever offered any such view, and none of the present justices, or any prominent politician, has come close to proposing it.
In 1987, moreover, Thomas also suggested, in a speech to the Pacific Research Institute, that he supported a much more active role for the Supreme Court in protecting businesses from regulation for safety or conservation or other purposes. “I find attractive,” he said, “the arguments of scholars such as Stephen Macedo, who defend an activist Supreme Court that would strike down laws restricting property rights.” Some background is necessary to understand why that statement alarmed constitutional lawyers. In 1905, in the famous case of Lochner v. New York, the Supreme Court held that New York’s law forbidding bakeries from hiring bakers to work more than ten hours a day was unconstitutional because it violated the command of the Fourteenth Amendment that “liberty” not be infringed without due process of law. The Court used similar arguments in later cases, including cases that struck down early New Deal economic regulation.
Almost all constitutional lawyers now regard the Lochner decision, and the decisions that followed in its spirit, as disastrous mistakes. By the 1950s it was orthodox opinion that the due process and equal protection clauses leave state and national governments almost wholly free to balance competing interests of liberty, safety, equality, conservation, economic policy, and social justice in deciding how to regulate business practice. In 1955, for example, in the well-known case of Williamson v. Lee Optical, the Court held that Oklahoma was permitted to impose restrictions on opticians that it did not impose on sellers of readymade glasses, because there might well be some rational basis for that distinction even though Oklahoma had not provided one. The Court’s hands-off attitude on economic matters is now thought necessary to allow government to regulate the economy effectively.
Stephen Macedo, who is a professor of government at Harvard, and some other constitutional scholars, including Richard Epstein of the University of Chicago Law School, have argued that the Court should reverse that practice and apply a stricter test to protect businesses, a test much closer to the strict test it uses to protect individuals from racial and other forms of discrimination. Macedo argues, for example, that the Court’s decision in the optician case should now be overruled, and that the natural rights the Constitution protects should be understood to include economic as well as personal rights. 2 Bork, on the contrary, had emphasized his own firm opposition to any return to the spirit of the Lochner case; he supported the orthodox view that businesses do not have any substantial constitutional rights that restrict what government can do by way of safety or redistributive programs, beyond the right to be compensated when government directly confiscates their property.
It is extremely doubtful that Thomas could have been confirmed if he had remained loyal to his extreme position about abortion and his support for strengthened economic constitutional rights. He might simply have told the committee that he had changed his mind on these matters. But Bork had announced similar important changes in his views, and was savaged for what his critics then called, skeptically, a “confirmation conversion.” So Thomas’s advisers counseled a different strategy: they doubtless told him simply to disown ever having held the views his past statements seemed to announce.
Thomas explained his endorsement of the Lehrman article by saying he wanted to interest a conservative audience in civil rights, and thought that introducing them to the idea of natural law would be helpful to that end. He had, he said, chosen the Lehrman article to praise because his lecture was in the Lehrman auditorium, and he thought the choice of Lehrman would please his right-wing audience. He had only skimmed the article, and did not know that the only example of natural law thinking it contained was Lehrman’s argument about abortion, in spite of the fact that Lehrman’s article was titled “The Declaration of Independence and the Right to Life.”
He took the same line about his reference to Macedo. He could not recall Macedo’s arguments, but only that he found them interesting. He meant merely to endorse the general idea that people have rights under natural law, not to endorse the particular use that Macedo actually made of the idea. Nor did he think that “natural law” or “natural rights” really had any connection with constitutional law at all. He had meant to say, in praising Lehrman’s and Macedo’s arguments about how the Court should decide cases, only that he found the idea of natural law interesting in some contexts, as an idea to “play around with,” not that judges should use natural law to decide cases.
Several senators expressed dissatisfaction with these unpersuasive disavowals, but they were unable to coax any better explanation from him of what he had meant. Some senators attempted to discover his present views. They asked whether he accepted that the Constitution contains a right to privacy. Bork had denied any general right to privacyâ€”he criticized the idea as something liberal judges had invented. But Kennedy and Souter had both said the Constitution does include such a right, and they had been easily confirmed. Thomas said he now agreed with them. But when he was asked the obvious next questionâ€”whether he thought the right to privacy includes a woman’s right to control her own reproduction, as the Court had held it does in Roe v. Wadeâ€”he declined to answer on the ground that disclosing his opinion about that case would compromise his independence when the Court was asked to overrule it.
See Thomas, Why Black Americans Should Look to Conservative Policies, The Heritage Lectures, 8.↩
It is worth noting, however, that Professor Macedo has criticized almost every other opinion Thomas and other conservative lawyers hold. Macedo denies that fetuses have natural rights that entitle states to prohibit abortion from the moment of conception, for example, though he does think that some compromise should be struck about abortion that allows prohibition before the third trimester. In a recent book, The New Right and the Constitution, he sharply attacked Bork and other new-right lawyers for their moral cynicism, and for their hypocritical use of the "original intention" method of constitutional interpretation.↩
See Thomas, Why Black Americans Should Look to Conservative Policies, The Heritage Lectures, 8.↩
It is worth noting, however, that Professor Macedo has criticized almost every other opinion Thomas and other conservative lawyers hold. Macedo denies that fetuses have natural rights that entitle states to prohibit abortion from the moment of conception, for example, though he does think that some compromise should be struck about abortion that allows prohibition before the third trimester. In a recent book, The New Right and the Constitution, he sharply attacked Bork and other new-right lawyers for their moral cynicism, and for their hypocritical use of the “original intention” method of constitutional interpretation.↩