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Justice for Clarence Thomas

That is absurd. Judicial independence does not consist in justices having no previous opinions about the issues that come before them but in their willingness to attend carefully and honestly to arguments on both sides, and to be ready to change their minds if convinced. The majority of the present justices have made their opinions about Roe v. Wade plain, and no one doubts, for that reason, that they can fairly decide whether it should be reversed.3 There are, I believe, sound reasons why nominees should in principle be reluctant to disclose their views about pending or imminent cases. The Constitution is designed to protect minority rights from violation by majoritarian authority, and it would undermine that function if senators could veto nominees who admitted an intention to vote for a politically unpopular minority in a pending case. But in this case there were important countervailing reasons for candor. Thomas was nominated by the leader of a party whose platform promised to appoint judges who would overrule Roe v. Wade, a fact that raised at least a suspicion that the administration knew how he intended to vote. In any case, as Senator Metzenbaum pointed out with some annoyance, Thomas’s scruples about discussing potential cases were highly selective: he had no compunctions about announcing his views on a number of other highly controversial constitutional issues that might well come before the Court, including not only the question of independent prosecutors which I have mentioned, but the constitutionality of criminal sentencing guidelines, and sensitive First Amendment issues about the establishment of religion.

Thomas could, moreover, have discussed the central jurisprudential issues involved in the abortion controversy—whether the right to privacy extends to procreative autonomy in principle, and what legitimate interests a state has in protecting fetal life—without having to indicate how he would resolve any conflict between that right and that interest in the circumstances of any particular case. That discussion might have given shrewd observers a good sense of his likely vote, but it would fall short of committing him to a concrete position.

Thomas would not be drawn into any discussion which bore on abortion at all, however, and some of the statements he made to suggest his openness of mind on the subject were breathtaking. Though he was at Yale Law School when Roe v. Wade was decided, he said he could not remember any discussion of the decision either in class or among fellow students. He had never since discussed the issue with anyone else, and in fact had no opinion about Roe v. Wade himself, in spite of his unstinting endorsement of Lehrman’s claim that that decision was judicial murder. He said he had signed the report on family policy, which recommended that justices be appointed who would overrule that decision, without reading the report, and did not know that it expressed that view.

So Thomas’s five days of testimony left senators with the following choice. If they did not believe his disavowals of his past statements, or his claim never to have discussed abortion with others or come to any view himself, then he had lied to them, deliberately covering up his record and opinions because he knew the American public would not wish him confirmed if it knew the truth. If they did believe him, then, by his own admission, his many speeches had been made in complete ignorance of or indifference to the most important constitutional issues of his time. He had praised books and articles he had not read or only skimmed, strongly endorsing ideas he either did not understand or rejected, just to impress particular right-wing audiences he was addressing, to get them to support his views on other matters, and, perhaps, to advance his own career in a right-wing administration. How could a senator vote for Thomas on either assumption?

But the Judiciary Committee split seven to seven on the nomination, and, as I have said, the full Senate would apparently have confirmed him if the allegations of sexual harassment had not been publicized. No doubt President Bush selected Thomas to succeed the only black justice ever appointed to the Court, Thurgood Marshall, exactly because it was so difficult for politicians to oppose a black nominee for that position. (Bush, of course, cynically claimed that race played no part in his selection.) In any case, the liberal senators who voted for him stressed his background as their reason: Senator Arlen Specter of Pennsylvania, the only Republican on the Judiciary Committee who had voted against Bork, said he voted for Thomas by paying more attention to his “roots” than to his writing, and others suggested, as Dean Calabresi of the Yale Law School had argued in his testimony before the committee, that Thomas would add diversity to the Court, and might “grow” in office. If Thomas is confirmed, we must hope that these predictions are justified, that he develops an independent position that reflects rather than denies his distinct background, and that he does not become just one more willing corporal in Rehnquist’s campaign to reverse the main achievements of constitutional law of the last four decades. Nevertheless the manner of Thomas’s appointment—the mockery it made of the Senate’s constitutional duty to pass on judicial qualification—has damaged the nomination process no matter how good or bad a justice he might become.

2.

When the hearings closed, the Judiciary Committee’s chairman, Joseph Biden, announced that he would be considering revisions in the committee’s procedures for future Supreme Court nominations. He might recommend, as Anthony Lewis recently suggested in The New York Times, that special counsel for both sides, rather than committee members themselves, should carry the main burden of questioning a nominee, as such counsel do in other committee hearings. The main flaw in the Thomas hearings was not procedural, however, but jurisprudential. No change in procedures can protect the committee from a future stonewalling nominee—particularly one who has published very little, as Kennedy and Souter had—unless at least a substantial number of its members are willing, in public, to abandon a thesis which no one with any experience in constitutional law really believes but which most senators apparently think the public cherishes.

This could be called “the neutrality thesis”: that a Supreme Court justice can reach a decision in a difficult constitutional case by some technical legal method that wholly insulates his decision from his own most basic convictions about political fairness and social justice. The thesis does not insist only that a justice can set aside his own party or sectional allegiances, or his own self-interest, in reaching decisions, as of course he can and must. It also insists that justices can reach decisions uninfluenced by their own convictions about fundamental issues of political and constitutional philosophy. Political theorists and legal philosophers disagree about such fundamental issues: they disagree, for example, over whether an ideal democracy is one in which the constitutional rights individual citizens have against the majority are limited to detailed rights codified in explicit texts, so that contemporary majorities are free themselves to decide whether any further or more generous rights should be accorded, or whether, on the contrary, a true democracy accepts that constitutional rights should be understood as reflecting some overall, co-herent conception of free and equal citizenship, understood as a national moral ideal, so that individual citizens must have the power to argue, before courts charged with enforcing that national commitment, that the ideal grants them rights not previously recognized.

They disagree about more substantive issues as well; they disagree, for example, over whether the liberty of individuals to make personal ethical choices for themselves—about religious observance or sexual behavior, for instance—is only a liberty some people, including liberals, particularly value although others do not, or whether that liberty is, on the other hand, so fundamental to the very idea of a free society that no community that abridges it can be called truly free. They disagree about philosophical issues that cut across the other differences of opinion I have mentioned: they disagree, for example, about whether fundamental political principles, including ideals of democracy and principles affirming basic liberties, have some objective moral standing, or whether any such principles derive only from subjective preferences, so that democratic politics can be only a matter of satisfying whatever preferences or prejudices the public happens to have.

The neutrality thesis holds that an honest justice’s opinions on issues like these need not, and should not, make a difference to his decisions in constitutional cases. That is preposterous. The crucial clauses of the Constitution are drafted in very abstract moral language: they command “due process,” for example, and “equal protection of the laws.” It is true, and important, that any judge’s opinions about the correct application of these abstract clauses to particular cases must respect the Constitution’s text and the history of its enactment and interpretation. But, as almost every controversial Supreme Court decision demonstrates, these can often be read in different ways, and any particular justice’s interpretation will be dominated by his convictions about what an ideal democracy would be like, or what rights are really fundamental, or whether ideas about the character of ideal democracy and fundamental rights have an objective basis or are only subjective preferences.

It is important to see, however, that if the neutrality thesis were true, then Senator Kohl’s test would be inappropriate: the committee would have no need to investigate a judge’s own “constitutional philosophy” because that philosophy would not figure in his constitutional decisions. So different Republican senators repeatedly endorsed the neutrality thesis throughout the hearings. Senator Charles Grassley of lowa asked Thomas, for example, whether he agreed that judges should decide neutrally, applying the Constitution as it really is, not reading their own philosophy into it, as in Grassley’s view too many justices have done in recent years. Thomas solemnly said that he did agree. Some senators expressed disquiet about the neutrality thesis, and Senator Paul Simon of Illinois said that Thomas’s claim that he had no agenda was unrealistic because “the reality is that you become a policy maker on the United States Supreme Court.” But Simon did not press the point, and no senator asked Thomas how judges could be neutral in constitutional matters.

Thomas himself expressly relied at several points on the neutrality thesis as a justification for not responding to the committee’s questions. “With respect to my personal views,” he told Senator Strom Thurmond of South Carolina, “my personal views have no place in adjudication.” Several times he used a peculiar metaphor, which presupposes the neutrality thesis, to explain why his former views were irrelevant. Those views, he said, were appropriate to a politician and a member of the executive, who must sometimes act as a litigator for his administration. But now, as a judge, he had “stripped down like a runner,” shedding all past opinions and convictions so that he could just apply strict, neutral legal reasoning the way a good judge does, entirely uninfluenced by any philosophical convictions of his own about the character of democracy or the nature of the Constitution or which rights are fundamental to liberty.

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    The Chief Justice, Rehnquist, and Justice White dissented from the original decision in Roe v. Wade, and have in different ways continued to display their opposition. Justice Scalia dissented in the recent case of Webster v. Reproductive Health Services, which limited the right of abortion in various ways but stopped short of repealing Roe altogether, for the sole purpose of declaring his view that Roe should be repealed as soon as possible. Justice Blackmun wrote the decision in Roe, and has often stated his continued defense of that decision. Justices Stevens, O’Connor, Kennedy, and Souter have either written or joined in opinions from which general positions about abortion may be inferred.

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