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Thomas’s Confirmation: The True Story

Resurrection: The Confirmation of Clarence Thomas

by John C. Danforth
Viking, 225 pp., $19.95

Strange Justice: The Selling of Clarence Thomas

by Jane Mayer, by Jill Abramson
Houghton Mifflin, 406 pp., $24.95

After Supreme Court nominations led to two recent slug-fests (Robert Bork’s rejection in 1987, Clarence Thomas’s confirmation in 1991), many people believed that “the process” of clearing appointments to the Court had gone seriously awry and needed repair. Senator John Danforth wants confirmation hearings to be treated like trials, preserving the assumption that a nominee is innocent of all charges brought against him or her, until and unless such charges can be proved beyond a reasonable doubt. Others have proposed different remedies—that trained cross-examiners, instead of senators on the judiciary committee, question the nominee; that the hearings be held in secret (or not held at all), that witnesses against the nominee be restricted in what they can allege. Stephen Carter, in The Confirmation Mess, shows how unpracticable these and other remedies would be.

There is no reason to think “the process” is flawed. After Watergate, some concluded that there was something wrong with the presidential electoral process, and cast about for ways of reforming it. But the electoral machinery does not guarantee that a good man will be chosen, only that the choice will reflect the electorate’s wishes. All it can do is give the people what they want, and in 1968 people voted overwhelmingly for Nixon and Agnew (43 percent) or for Wallace-Lemay (13 percent), a 56 percent vote to repress what annoyed Americans at the time (campus revolt, city riots, antiwar protesters). The rule with the election process is the same as for computers: garbage in, garbage out. The same could be said of the Supreme Court nomination process. There is nothing wrong with the machinery of public hearing, just with the attitudes of those using it. When a chairman of the Judiciary Committee cannot make up his mind what the hearings should or should not investigate, the best machinery in the world will not improve the furnishings of his mind.

Some nominees have taken the position that they have no responsibility to answer questions about their views. Only their public record should be examined. In 1939, Felix Frankfurter refused to appear before the committee, until his friends convinced him that he would be rejected if he did not. But Frankfurter had a point: no nominees had testified before the Senate until 1925, when Harlan Stone became the first to do so. The level of appointments in the past did not seem to suffer significantly because no hearings were held.

Besides, the Senate’s role is to “advise and consent,” not to make appointments on its own. Over the course of seventy-five years, from 1894 to 1968, only one nominee (John J. Parker) was rejected—leading people to think the Senate’s role as a rubber stamp would continue. But this was the period of an expanding “imperial presidency,” when Congress ceded many powers to the executive branch. Not surprisingly, the rejection of justices reentered our political life late in Lyndon Johnson’s presidency (with resistance to his nominees Fortas and Thornberry) and early in Richard Nixon’s (with the rejection of two men in a row, Haynsworth and Carswell). That is, just when Congress was reasserting its authority on a broad range of issues.

The lull in rejections after 1894 was a sharp departure from earlier practice. Up to that year, an average of one in four justices had been rejected.1 Even a sympathetic Federalist Congress turned back one of George Washington’s choices—John Rutledge, a former justice nominated to become Chief Justice. And these rejections were often based on broad considerations, going beyond the candidate’s judicial record. Rutledge was rebuffed because he broke ranks with the Federalists on the Jay Treaty and because of rumors about his mental stability.2 He might have welcomed a chance to explain his views on the Treaty and to confront the rumors of his insanity.

Other men were dismissed from consideration as a deliberate rebuke to the President. John Tyler failed with five nominees.3 The Senate let Andrew Johnson know it would confirm none of his appointees; it reduced the court from ten to nine justices, and threatened to shrink it to eight if he tried to put up another nominee.4 These were extensions of a normal Senate reaction to lame duck presidents: when the executive is expected to change hands, the Senate has often delayed a consideration of the nominee until a new administration came in (the tactic used against Fortas and Thornberry in 1968).

There would have been more rejections but for quiet elimination of figures under consideration when their Senate prospects looked dark. This often involved “senatorial courtesy” (a de facto veto on nominees if either senator from the person’s own state was opposed) or geographical balance. The threat of rejection usually makes a president keep the congressional will in mind as he makes his selection of a nominee. It was Nixon’s defiance of such tact (as well as the candidate’s mediocrity) that quickly solidified opposition to Harold Carswell.

It is naive, then, to suppose that appointment of justices can be, or ever was, “above politics.” If that were the case presidents would not make Supreme Court appointments from their own party 85 percent of the time, and appointments to lower courts from their own party 90 percent of the time.5 It is clear from this that the Senate cannot compel a president to choose someone not of his own party. Often the nominees come from the president’s administration or his campaign team.

If a Democratic Senate cannot “advise” a Republican president to appoint a Democratic justice, what advice can the Senate give? Whatever advice it thinks relevant to the situation. Those seeking advice do not normally tell the adviser what counsel he or she can give. A person who says, “Advise me, but only to do this,” is not seeking advice. Yet some think a president can or should say, “Advise me to support the man I have already appointed.” That is not advice. It is capitulation.

Needless to say, the Senate does not have an entirely free hand. It cannot, as I just said, dictate the party background of a nominee. There are certain other practical restrictions on its mandate. A president can appoint someone because (among other things) he or she is a black, a woman, a Catholic, a Jew. Ronald Reagan promised to appoint a woman, and did. The Senate cannot, as a political reality, refuse to confirm because the candidate is black or a woman. It must come up with some other plausible objection, since there are social gains to having a black on the Court, or a woman, but no definable social gains in, say, refusing to have a woman on the Court. (If, at some point, there were seven women on the Court, objection to confirming an eighth would have a defensible basis.) “Diversity” was the ground on which some Senators voted to confirm Clarence Thomas—and it is one respectable basis for making such a decision.

In general, given the fact that a nominee will normally be of the president’s party, and often of his personal circle, the Senate can demand that the justice-to-be show some independence in judicial matters, along with basic competence, desirable judicial temperament, and formed constitutional attitudes. How to determine these things is the problem—a problem made more acute by many efforts to limit inquiry.

We are told, for instance, that the Senate should not try to predict how a justice will vote on key cases, and certainly not ask him or her ahead of time, exacting a pledge. Yet the president clearly considers that in his selection, despite unconvincing disavowals; and in fact the performance of judges, with a few famous exceptions, is usually predictable.6 We are also told that there should be no “litmus test” for confirmation of a justice, or even for his or her nomination. That makes some sense when it concerns a deeply divisive issue like abortion, on which the community has not made up its mind. New situations and arguments may call for fresh thinking on the justice’s part, and a pledge to vote one way or another might inhibit fairness (or the perception of it).

But even there a justice who showed a pattern of insensitivity to the issue (on whichever side) is suspect. And there are other matters, on which the mind of the nation is made up, which constitute de facto “litmus tests.” If, outlandishly, a present nominee held Roger Taney’s views on slavery, he would be dismissed at once. That sounds far-fetched; but Stephen Carter makes the sound point that agreement with the Brown v. Board of Education decision is now a litmus test. Both Bork and Thomas, who had earlier questioned the rationale of the decision, had to assure the judiciary committee that they agreed with the result. They would have had no chance of being confirmed if they had done otherwise.

Another limit on inquiry is imposed by people who say a justice should have no constitutional views at all, only the supposed lack of independent views that looks to the “original intent” of the Constitution’s framers and ratifiers. This claim is based on a naive epistemology—on a view that the language of the document and the mind of the reader can be clear mirrors through which others’ intent shines without interference.7 It is also based on deep historical ignorance of the nature of the Constitution—on the sense that people voted for provisions from a single discernible intent. The founders themselves proposed the document as a compromise to be clarified by time and by concrete situations.8 They differed among themselves on the meaning of their own document (e.g., on whether it allowed for a national bank). When they did so, they did not settle their arguments by looking up the debates on the Constitution (which Madison, in fact, kept hidden during the controversies on the Bank and other matters), but by arguments from equity, justice, and legal precedent outside as well as within the Constitution. Thus “originalism,” as presented by Edwin Meese or Robert Bork, is one of many schools of constitutional interpretation, not a way of avoiding interpretation.9 But Republican presidents have promised to appoint people who will not interpret, just “stick to” the original intent. This is supposed to exempt them from questioning about their constitutional views (as opposed to the founders‘ views).

1.

Bork

If people can remove from the scope of Senate inquiry a consideration of judicial philosophy as well as of views on particular cases, that leaves the Senate with nothing to inquire about except basic mental and moral competence. If the nominee is equipped to read the Constitution in the original (intent and all) and has no ethical conflicts of interest or obvious moral failings, then he should sail through.

That was, in effect, what Robert Bork’s defenders said of him. When one of the major indicators of competence used by the committee, a recommendation of the American Bar Association, turned up ten votes calling Bork qualified, with one abstention and four votes marking him unqualified, Bork cried foul: “The committee was [supposed] to judge only professionalism and not philosophy.”10 The four opponents cited lack of “judicial temperament,” which Bork claimed was outside their purview—and presumably outside the committee’s as well.

  1. 1

    Albert P. Blaustein and Roy M. Mersky, The First One Hundred Justices (Anchor Books, 1978), pp. 72–86. 

  2. 2

    The Senate was probably right to listen to rumors of Rutledge’s instability—he attempted suicide shortly after his rejection. By acting on its doubts, the Senate made possible the subsequent confirmation of John Marshall, the greatest civil justice. 

  3. 3

    Henry J. Abraham, Justices and Presidents (Oxford University Press, 1974), pp. 97–98. 

  4. 4

    Abraham, Justices and Presidents, pp. 115–116. 

  5. 5

    For the historical statistics, see Abraham, Justices and Presidents, p. 59. 

  6. 6

    Laurence Tribe criticizes “the myth of the surprised president,” based on a few anecdotes of presidential disappointment in their nominees. See Tribe, God Save This Honorable Court (Random House, 1985), pp. 50–76. 

  7. 7

    Madison was not so epistemologically naive. He argued that the meaning of the Constitution was not single, fixed, and obvious, since “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to indicate many equivocally denoting different ideas.” Comparing constitutional interpretation to biblical exegesis, he abjures fundamentalism: “When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium, through which it is communicated.” The Federalist, No. 37, edited by Jacob E. Cooke (Wesleyan University Press, 1961), pp. 236–237. 

  8. 8

    Madison recommended the Constitution because it left its meaning to be found by later uses, applications, and interpretations: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated [clarified] and ascertained by a series of particular discussions and adjudications.” The Federalist, No. 37, p. 236. 

  9. 9

    Robert Bork says that the intent of the ratifiers in all the states (who enacted the law), not the framers (who only proposed it, acting as a drafting committee), is what binds. But some of the late ratifying states came in reluctantly, because they felt they could not defeat the Constitution and they did not want to be left out. What was their “intent”—submission to force majeure? See Bork, The Tempting of America (Free Press, 1990), p. 181. 

  10. 10

    Bork, The Tempting of America, p. 292. 

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