The fundamental problem with the Supreme Court appointment process is not its tendency to he hijacked by eleventh-hour El-legations of scandalous conduct.
Nor is it the unseemly, kangarocourt atmosphere that sometimes prevails at Senate confirmation hearings.
Nor is it that somebody leaked Professor Anita Hill’s allegations of sexual harassment against Judge (now Justice) Clarence Thomas to the press, along with the Judiciary Committee’s I initial, secret decision to dismiss her immensely troubling account without hearing her give it.
Nor is it that the resulting firestorm forced the Senate then to have her testify at a public hearing, which predictably degenerated into a Roman circus.
Nor is it that liberal interest groups, senators, and their staff scour the nation for dirt about conservative nominees. Nor that the White House and Republican senators conducted a cynical smear campaign against Hill. Nor that either Thomas or Hill (I know not which) is the victim of a monstrous lie.
Nor is it that the odds are at least 50-50 that we now have a rampant perjurer on the Supreme Court.
Those phenomena preoccupy the public mind after the Senate’s partisan food-fight over the sexual harassment issue.
But the fundamental problem is the Senate’s unwillingness to insist on the best and, in this era of divided government, on a frank compromise as to the political and judicial philosophies of Supreme Court nominees.
The problem is that most senators will give the president’s nominees the benefit of the doubt-not that some won’t-when the issue is not whether the nominee should go to jail, but whether he or she should go to the nation’s highest tribunal-for life. This has enabled the president to get away with making highly ideological, partisan nominations of conservative mediocrities.
The major problem, in short, is not the confirmation process but the nom¨inating process.
Because of the Senate’s spineless-ness in failing to assert the full measure of its power of "advice and consent," Presidents Reagan and Bush have made the Court a bastion of stat-ism and harsh conservative ortho¨doxy, turning it away from protection of the politically weak.
With the recent addition of Justice Thomas, who squeaked through the Senate by a 52 to 48 vote, and, last year, of Justice David Souter, the Court is also slipping into mediocrity.
And Senate confirmation hearings have become such a sorry charade that Judiciary Committee chairman Joseph Biden, Jr., plans hearings on the hearings.
The time has come for the Senate to drag itself out of the slime and find the will not just to tinker with its own procedures but to claim full parity with the president in choosing new justices.
It should start by insisting that President Bush’s next Supreme Court appointee, if any, be a person of real distinction with a first-class mind, and a centrist (or even a liberal), rather than another tribune of the hard right.
A centrist like Ruth Bader Ginsburg. Or John Hart Ely. Or William Van Alstyne, Or Amalya Kearse, Or Gerald Gunther. Or Michael Boudin. Or Sol Wachtler. Or Philip Lacovara. [See sidebars, pages 76-78.]
No more second-raters. No more right-wingers. No more "stealth nominees." No more sly dissemblers spewing Federalist Society rhetoric to get nominated and soothing sophistries to get confirmed.
No more benefit of the doubt.
After ten consecutive, increasingly ideological Republican appointments over 22 years, there may soon be nobody left on the Court who can cogently challenge the prevailing conservative orthodoxy. And the recent run of mediocrities could eventually leave the Court with nobody who can reason cogently at all.
These trends reflect the difficulty in the post-Bork era of nominating anyone who is not a conservative ideologue, and of confirming anyone who is. The Bush response has been to pack the Court with second-rate Borklets flying false flags of moderation.
That won’t do. After the sad spectacle of Clarence Thomas so successfully faking and stonewalling his way through a supine Senate-up until he was blindsided by sexual harassment charges-it’s past time for the world’s most self-important deliberative body to find some backbone.
"Advice": That means demanding real consultations with the president on prospective nominees before one is chosen. The Senate should insist on nominees of proven excellence; the leadership should have its own list of prospects, and ask the president to explain why someone else would be better. It. should greet with special skepticism any nominee the president springs on the nation without such advance consultations.
"Consent": That’s a mandate for the Senate to hold out for a political compromise as to the nominee’s ideology, at least as long as we have a Democratic Senate and a Republican president. (The same would apply if we had a Republican Senate and a Democratic president.)
If the president wants a conservative and the Senate would prefer a liberal, the ideal compromise choice would be a moderate-not a mushy moderate, but a tough-minded independent with an instinct for challenging the dogmas of both right and left; a John Marshall Harlan, or a Potter Stewart, or a Henry Friendly.
The presumption should be that any nominee without a record evidencing a judicial philosophy acceptable to the Senate will be rejected.
Certainly at this point in history the Senate would be justified in serving notice on the president that the Court Court has already become too statist too hostile to civil liberties, and too enamored of presidential power, and that no nominee who seems predisposed to enhance or perpetuate this ideological imbalance will be confirmed.
The senators can assert themselves credibly, however, only if they also eschew the single-issue litmus tests demanded by both sides in the abortion debate and other groups. They should also restructure the hearings and ask more intelligent questions, instead of giving long-winded, pedantic speeches and badgering nominees for campaign promises on how they would decide particular issues.
DUMP THE DEFERENCE
Despite the rejection of Judge Robert Bork in 1987, there is a lot of life left in the tradition of Senate deference to the president’s mythical prerogative to put on the Court anyone who is not (or cannot be caricatured as) a lunatic, an idiot, a drunk, a crook, a far-out extremist, or a sex fiend.
"There may be the day when the Senate will have to declare full partnership with the president," Senator Arlen Specter, the moderate Republican from Pennsylvania, said in explaining his September 27 vote in the Senate Judiciary Committee for Thomas. "But at the moment I continue to [believe] that there is still deference owed by the Senate. But that may change if the Court … becomes too revisionist or too extreme."
There are powerful reasons to dump the deference now.
First, of course, a Supreme Court nominee, unlike a Cabinet nominee, is not supposed to be part of the president’s policy-making team. He or she aspires to the pinnacle of the third branch of government, with powers that include refereeing disputes between the executive and Congress. And he or she is likely to serve long after the appointing president has left office. We could be stuck with Clarence Thomas for 40 or 50 years.
Second, the Court is now skewed too far to the right, as it was arguably skewed to the left during the heyday of the Warren Court. Thomas’s confirmation leaves seven conservatives, two justices who are conservative on some issues and liberal on others-Harry Blackmun, who will turn 83 on November 12, and John Paul Stevens, who is 71-and not one liberal in the classic mold of William Brennan, Jr., or Thurgood Marshall.
The Court is dangerously close to the point where there may be nobody left to dissent if, for example; it renders decisions likely to lead to the executions of people wrongly convicted of murder.
It’s unhealthy for the Court to be so ideologically one-sided that nobody challenges the prevailing orthodoxy from within. You don’t have to be a liberal to appreciate that the best-considered, wisest, and most tolerant decisions on hard issues are likely to be fostered by the dialectic of a genuine adversarial process within the Court. And the public depends on dissenting opinions to understand what is at stake when major decisions come down.
Of course, ideological imbalance is in the eye of the beholder. It may seem self-evident to legal academia that this is a far-out, right-wing Court, &quo…
The fundamental problem with the Supreme Court appointment process is not its tendency to he hijacked by eleventh-hour El-legations of scandalous conduct.
Nor is it the unseemly, kangarocourt atmosphere that sometimes prevails at Senate confirmation hearings.
Nor is it that somebody leaked Professor Anita Hill’s allegations of sexual harassment against Judge (now Justice) Clarence Thomas to the press, along with the Judiciary Committee’s I initial, secret decision to dismiss her immensely troubling account without hearing her give it.
Nor is it that the resulting firestorm forced the Senate then to have her testify at a public hearing, which predictably degenerated into a Roman circus.
Nor is it that liberal interest groups, senators, and their staff scour the nation for dirt about conservative nominees. Nor that the White House and Republican senators conducted a cynical smear campaign against Hill. Nor that either Thomas or Hill (I know not which) is the victim of a monstrous lie.
Nor is it that the odds are at least 50-50 that we now have a rampant perjurer on the Supreme Court.
Those phenomena preoccupy the public mind after the Senate’s partisan food-fight over the sexual harassment issue.
But the fundamental problem is the Senate’s unwillingness to insist on the best and, in this era of divided government, on a frank compromise as to the political and judicial philosophies of Supreme Court nominees.
The problem is that most senators will give the president’s nominees the benefit of the doubt-not that some won’t-when the issue is not whether the nominee should go to jail, but whether he or she should go to the nation’s highest tribunal-for life. This has enabled the president to get away with making highly ideological, partisan nominations of conservative mediocrities.
The major problem, in short, is not the confirmation process but the nom¨inating process.
Because of the Senate’s spineless-ness in failing to assert the full measure of its power of "advice and consent," Presidents Reagan and Bush have made the Court a bastion of stat-ism and harsh conservative ortho¨doxy, turning it away from protection of the politically weak.
With the recent addition of Justice Thomas, who squeaked through the Senate by a 52 to 48 vote, and, last year, of Justice David Souter, the Court is also slipping into mediocrity.
And Senate confirmation hearings have become such a sorry charade that Judiciary Committee chairman Joseph Biden, Jr., plans hearings on the hearings.
The time has come for the Senate to drag itself out of the slime and find the will not just to tinker with its own procedures but to claim full parity with the president in choosing new justices.
It should start by insisting that President Bush’s next Supreme Court appointee, if any, be a person of real distinction with a first-class mind, and a centrist (or even a liberal), rather than another tribune of the hard right.
A centrist like Ruth Bader Ginsburg. Or John Hart Ely. Or William Van Alstyne, Or Amalya Kearse, Or Gerald Gunther. Or Michael Boudin. Or Sol Wachtler. Or Philip Lacovara. [See sidebars, pages 76-78.]
No more second-raters. No more right-wingers. No more "stealth nominees." No more sly dissemblers spewing Federalist Society rhetoric to get nominated and soothing sophistries to get confirmed.
No more benefit of the doubt.
After ten consecutive, increasingly ideological Republican appointments over 22 years, there may soon be nobody left on the Court who can cogently challenge the prevailing conservative orthodoxy. And the recent run of mediocrities could eventually leave the Court with nobody who can reason cogently at all.
These trends reflect the difficulty in the post-Bork era of nominating anyone who is not a conservative ideologue, and of confirming anyone who is. The Bush response has been to pack the Court with second-rate Borklets flying false flags of moderation.
That won’t do. After the sad spectacle of Clarence Thomas so successfully faking and stonewalling his way through a supine Senate-up until he was blindsided by sexual harassment charges-it’s past time for the world’s most self-important deliberative body to find some backbone.
"Advice": That means demanding real consultations with the president on prospective nominees before one is chosen. The Senate should insist on nominees of proven excellence; the leadership should have its own list of prospects, and ask the president to explain why someone else would be better. It. should greet with special skepticism any nominee the president springs on the nation without such advance consultations.
"Consent": That’s a mandate for the Senate to hold out for a political compromise as to the nominee’s ideology, at least as long as we have a Democratic Senate and a Republican president. (The same would apply if we had a Republican Senate and a Democratic president.)
If the president wants a conservative and the Senate would prefer a liberal, the ideal compromise choice would be a moderate-not a mushy moderate, but a tough-minded independent with an instinct for challenging the dogmas of both right and left; a John Marshall Harlan, or a Potter Stewart, or a Henry Friendly.
The presumption should be that any nominee without a record evidencing a judicial philosophy acceptable to the Senate will be rejected.
Certainly at this point in history the Senate would be justified in serving notice on the president that the Court Court has already become too statist too hostile to civil liberties, and too enamored of presidential power, and that no nominee who seems predisposed to enhance or perpetuate this ideological imbalance will be confirmed.
The senators can assert themselves credibly, however, only if they also eschew the single-issue litmus tests demanded by both sides in the abortion debate and other groups. They should also restructure the hearings and ask more intelligent questions, instead of giving long-winded, pedantic speeches and badgering nominees for campaign promises on how they would decide particular issues.
DUMP THE DEFERENCE
Despite the rejection of Judge Robert Bork in 1987, there is a lot of life left in the tradition of Senate deference to the president’s mythical prerogative to put on the Court anyone who is not (or cannot be caricatured as) a lunatic, an idiot, a drunk, a crook, a far-out extremist, or a sex fiend.
"There may be the day when the Senate will have to declare full partnership with the president," Senator Arlen Specter, the moderate Republican from Pennsylvania, said in explaining his September 27 vote in the Senate Judiciary Committee for Thomas. "But at the moment I continue to [believe] that there is still deference owed by the Senate. But that may change if the Court … becomes too revisionist or too extreme."
There are powerful reasons to dump the deference now.
First, of course, a Supreme Court nominee, unlike a Cabinet nominee, is not supposed to be part of the president’s policy-making team. He or she aspires to the pinnacle of the third branch of government, with powers that include refereeing disputes between the executive and Congress. And he or she is likely to serve long after the appointing president has left office. We could be stuck with Clarence Thomas for 40 or 50 years.
Second, the Court is now skewed too far to the right, as it was arguably skewed to the left during the heyday of the Warren Court. Thomas’s confirmation leaves seven conservatives, two justices who are conservative on some issues and liberal on others-Harry Blackmun, who will turn 83 on November 12, and John Paul Stevens, who is 71-and not one liberal in the classic mold of William Brennan, Jr., or Thurgood Marshall.
The Court is dangerously close to the point where there may be nobody left to dissent if, for example; it renders decisions likely to lead to the executions of people wrongly convicted of murder.
It’s unhealthy for the Court to be so ideologically one-sided that nobody challenges the prevailing orthodoxy from within. You don’t have to be a liberal to appreciate that the best-considered, wisest, and most tolerant decisions on hard issues are likely to be fostered by the dialectic of a genuine adversarial process within the Court. And the public depends on dissenting opinions to understand what is at stake when major decisions come down.
Of course, ideological imbalance is in the eye of the beholder. It may seem self-evident to legal academia that this is a far-out, right-wing Court, "disastrously out of sync with the country," in the words of Geoffrey Stone, the dean at the University of Chicago Law School.
But Stone and the rest of the legal professoriate fall rather to the left on the spectrum of American public opinion. And the Court’s tough, conservative posture on issues like the rights of criminal defendants, the death penalty, and affirmative action (though not abortion) seems in tune with public opinion. This helps explain why senators have been so timid about opposing conservative nominees on ideological grounds.
Still, the public’s consistent support of a Democratic Congress with liberal leanings on many issues suggests that the president has no mandate to pack the Court with hard-right conservatives bent on reversing the course of constitutional law.
In addition, the Court is not supposed to mirror the transient passions of public opinion, but rather to defend enduring constitutional values and the rights of minorities by resisting those passions. The framers intended the Senate to fulfill a similarly statesmanlike mission. That’s why senators get six years between elections. What they need is a little courage.
The success of Presidents Reagan and Bush in using the appointment process to work such a dramatic change in the Court’s direction has been a historical anomaly, especially after the Democrats regained control of the Senate in 1986.
Never before in the history of the United States has the president so deliberately and successfully transformed the Court during a period when the Congress was controlled by the opposing party.
When President Franklin D. Roosevelt used his appointment power to get a pro-New Deal Court, for example, the Democratic Senate fully agreed that the "nine old men" were out of step with the country. It was only natural for the Senate to go along.
Not so now. It is most unnatural for a Democratic Senate to acquiesce in the appointment of justice after justice who most Democrats fear will take the Court and the country in the wrong direction. It is especially unnatural when the president transparently seeks to use his own ideological litmus test to pack the Court with undistinguished conservatives like Clarence Thomas.
"One political party and one philosophy in many ways has been able to stack the whole membership of the Supreme Court while the other party has rolled over and played dead," says Stone.
The last real merit selection of a new justice was President Ford’s choice in 1975 of Stevens, whom he picked because Stevens was viewed as an uncommonly intelligent, first-rate judge and as a moderate conservative more acceptable to the Senate than a hard-liner like then-solicitor general Robert Bork.
Another consequence of senators’ timidity about publicly opposing nominees on ideological grounds has been that "the senators are willing to take ideology into account only if the nominee is, quote, outside the mainstream," says Professor Walter Del-linger of Duke University Law School. "And that leads to an unseemly process in which efforts are made to brand the nominee as an extremist or to attack his character. If the Senate were to assume a truly coequal role, they wouldn’t have to take such a hard position against the nominee and wrestle so hard to get admissions from the nominee."
The records of the constitutional convention in 1787 show no intent to relegate the Senate to screening Supreme Court nominees only for competence and character. Indeed, the power to appoint justices was vested exclusively in the Senate until late in the convention. This was changed to presidential nomination, subject to Senate "advice and consent," because multimember bodies aren’t good at initiating appointments. But there was no suggestion that the Senate was to be a mere rubber stamp.
Nor has it been. Some 20 percent of the presidential nominees through history have failed to win Senate confirmation. And eminently capable jurists from John Rutledge in 1795 to Robert Bork in 1987 have been rejected principally (if not always overtly) because most senators disagreed with their views.
President Hoover’s choice of a distinguished judge named John Parker in 1930 was voted down mainly because he had written a decision upholding yellow-dog labor contracts. Parker’s ruling was consistent with Supreme Court precedent, but organized labor and progressive Republicans wanted no more conservatives on a Court that they considered too conservative already.
When President Nixon tried to push the Court to the right by nominating the highly qualified Judge Clement Haynsworth, Jr., in 1969 and then the pathetic G. Harrold Carswell in 1970, the Senate balked. (Unfortunately, it hid behind insubstantial claims of ethical lapses in Haynsworth’s case.) Nixon’s third choice was Justice Harry Blackmun, who ended up writing the Roe v. Wade decision and is now the Court’s most liberal remaining member.
In recent decades, the "advice" aspect of the advice and consent power has atrophied. But in 1869 the Senate successfully petitioned a reluctant President Grant to name Edwin Stanton to the Court. (Stanton died four days after the Senate confirmed him.)
And in 1932 "public opinion and senatorial insistence practically had to put the president on a rack to prompt him to choose [Benjamin Nathan] Cardozo," as Henry Abraham relates in his 1974 book Justices and Presidents.
President Hoover wanted to name a Western, Christian Republican to succeed retiring Justice Oliver Wendell Holmes, Jr. But Hoover was swamped by a ground swell of pressure to choose a progressive judicial statesman. Senators, law school deans, and others clamored for the preeminent jurist of the day, who happened to be an Eastern, Jewish Democrat. That was Cardozo, chief judge of the New York Court of Appeals.When Hoover gave a list of possible nominees to Senator William Borah, chairman of the Senate Foreign Relations Committee, Cardozo’s name was at the bottom. The Idaho Republican said, "Your list is all right, but you handed it to me upside down." Hoover chose Cardozo.
The Senate unanimously confirmed him a few days later without bothering to hold a roll call vote.
Those were the good old days.
Lately, something has gone badly wrong with the Supreme Court appointment process, and many great and not-so-great minds are puzzling over how to fix it.
ESCAPING THE STEALTH SYNDROME
The basic structural cause is our long-term state of divided government, which has produced a gridlock more properly blamed on the framers of the Constitution, who opted against a parliamentary system, than on whoever leaked Anita Hill’s story to the press.
The best solution is not a less ideological confirmation process but a more political nominating process- in the politics-is-the-art-of-compromise sense. And the way to enforce this is for the Senate to exercise a more open and unapologetic ideological veto over Supreme Court nominees it finds unacceptable.
The fact that some Democrats who now want the Senate to do this have in years past taken the opposite position (as Senator Edward Kennedy did in the 1967 debate on Thurgood Marshall’s nomination) is of no more relevance than the fact that some Republicans (like Senator Strom Thurmond) have flip-flopped in the opposite direction.
Nor is broad congressional deference to the president the sole alternative to a stalemate in which only "stealth nominees" like Souter or dissembling mediocrities like Thomas can have a chance.
"We’ve already got a formula for mediocrity now," in the words of Lloyd Cutler, former counsel to President Carter. The formula consists of a president who insists on nominees acceptable to the Republican right, combined with senators who subject any nominee with a "paper trail" to a gauntlet of single-issue litmus tests-while giving the benefit of the doubt to nominees distinguished chiefly by lifelong failure to say anything controversial (or even interesting), or by willingness to run away from their previous assertions. "Intellectual dis tinction is the first thing that goes because it has no political constituency," says Professor Michael McCon-nell of the University of Chicago Law School.
Our body politic will be imprisoned in the "stealth nominee" box for as long as this pattern persists. It will not be an easy box to escape, especially as long as the whole process is warped by the politics of abortion, about which so many voters on both sides have such sincere and passionate convictions that they will scarcely be moved by pious preachments against single-issue litmus tests.
But escape it we must, if we are to shake the stealth nominee syndrome. Most of the people with the best credentials for the Court-wide experience writing about or litigating the hard issues it faces-have taken stands controversial enough to spur determined opposition from some groups. Indeed, a coalition between activists for either side in the abortion debate and, say, the gun lobby might be enough in the current atmosphere to threaten a superbly qualified nominee who has publicly criticized (or praised) Roe v. Wade and also endorsed the constitutionality of gun control.
It scarcely makes sense to choose new members of the Supreme Court precisely because their leanings on the most controversial issues they will decide are unknown. But that’s the system we have now. And how much more sense would it make to extend the single-issue litmus testing, as partisans on both sides in the abortion debate would do, by insisting that our senators vote down any nominee whose views on a particular issue are unknown? That would be a formula for perpetual stalemate.
All this is not to say that senators should not ask nominees to disclose any leanings they may have on abortion or any other issue. Such questions are entirely proper as a way of gaining insight into the nominee’s overall philosophy. It is also fair game for nominees to limit their responses to such questions so as to avoid the appearance or reality of prejudging cases by making campaign promises on how they will decide particular issues. Clarence Thomas went well beyond doing that; he sought to dodge controversy by implausibly disavowing the clear implications of numerous previous public statements. And he got away with it, and was headed for confirmation by a vote of about 60 to 40 (compared with the 52-to-48 vote that he got on October 15), until he was hit by the sexual harassment charges.
The only alternative to this stealth nominee/sly dissembler syndrome, other than giving the president an ideological blank check to pack the Court with conservatives, is for senators to find both the courage to oppose nominees whose overall philosophy they don’t like, and the wisdom not to insist that nominees be "right" on every issue that excites constituents.
If the senators could do this, they would find no shortage of first-rate prospects who are closer to the moderate center than to either ideological flank, and thus logical compromise choices in an era of divided government. They could advise the president to choose such a nominee. And they could refuse to confirm anyone who they suspect has a conservative political agenda.
SAVING THE COURT
To be sure, nobody stands out from the current crowd of possible nominees as Cardozo did in 1932. And it’s hard to find people of great distinction whose views fall precisely halfway between, say, the activist liberalism of a Brennan and the statist conservatism of a William Rehnquist.
"In an age of ideologized law," says Terry Eastland, a conservative theorist with the Ethics and Public Policy Center in Washington, D.C., who served as Edwin Meese III’s Justice Department spokesman, "if you have some intellectual sharpness, you’re going to have to be taking one side or the other. It’s very hard to find a centrist as such because what you get is a mushhead."
But moderation and clear thinking are not mutually exclusive. And moderation may be more compatible than ideological zeal with the criteria so well stated by Justice Felix Frankfurter for Supreme Court nominees: "breadth of vision … capacity for disinterested judgment, [and the] power to discover and to suppress [one’s] prejudices."
The list of First-Rate Centrists on page 76, based on interviews with some 50 law professors, practitioners, judges, public interest lawyers, and others around the country, includes some whose politics fall left of center but none who could fairly be called liberal judicial activists. The list is suggestive rather than exhaustive. So are the lists of professionally distinguished current and future Supreme Court prospects in the other categories: Liberal Stars, who might be leading candidates if the Democrats ever win the presidency; Conservative Stars, who are more interesting thinkers and less ideologically predictable than, say, Chief Justice William Rehnquist; Rising Stars, who may be ready for the Supreme Court in a few years; and Estimable Pols, who could add some practical government experience to a Court that now has no member who ever held high elected office.
Those listed have one thing in common: Any one of them would be far more distinguished than the first two Bush nominees.
The Senate’s own hearing process-not to mention the execrable caliber of the questioning-could also be improved. Among the most sensible suggestions now being circulated are to require nominees to appear for preliminary public questioning within a few days of their selection; then, after allowing several weeks for all sides to prepare, to have the witnesses for and against the nomination give their testimony; and then to seek further testimony from the nominee.
The purpose of the initial hearing would be to get more spontaneous, less scripted answers from the nominee than the well-rehearsed, deliberately opaque performances of Thomas and Souter. The purpose of hearing critics and supporters before the nominee’s more detailed testimony would be to educate the senators and the public about the issues he or she will be asked to address, to better understand his or her testimony and assess its credibility. This would also give the nominee a chance to respond to critics. But the more radical suggestions for reforming the hearings-that the Senate ban television cameras, or question the nominee in closed session, or even return to the pre-1925 tradition f not calling the nominee to testify at all-are unrealistic cures that would e worse than the disease.
Yes, the senators’ interrogations of Thomas at the initial hearing, focused on his history of inflammatory rhetoric, were appallingly inept, and done largely for show rather than to elicit iformation. And yes, the bloviations of Chairman Biden on natural law ‘ere especially painful to endure. (But Biden was the only senator who displayed much class at the sexual harassment hearing and was dead right in assailing his colleagues and Thomas for sanctimoniously pronouncing themselves disgusted by the process they ‘ere engaged in.) And yes, the dozens f repetitions of the what-are-you-gonna-do-about- abortion question were odious and unseemly. The best argument for confirming Thomas may have been that anyone who had to sit through the pre-sexual harassment hearing with such an amazingly straight face deserved some kind of prize.
And yes, the three-day extravaganza about the sexual harassment charges was appalling-not because the Senate was wallowing in such tuff, which it could hardly avoid doing, but because the Republicans were interested only in fighting an ideologcal war, not in learning the truth, and le Democrats were cravenly running or cover.
But it is no solution, in an era when the Court decides so many pressing social issues, to hide from public view le process of conferring life tenure n a person who will exercise such awesome power. As Professor Gerald Gunther of Stanford Law School says, the Senate’s real problem "is a lack of brain power, of backbone, of will, Tinkering with the process will not cure those ills. Pygmies in the Senate produce pygmies on the Court."
As unedifying as the whole spectacle was, we still learned some useful things about Thomas from his testimony. Before we ever heard of Anita Hill we learned that he could say he lad never discussed Roe, the most controversial Supreme Court decision of the past generation, with another human being. (If this astonishing claim is true, he’s a clod disqualified by lack of intellectual curiosity, if false, he’s a canton liar.) We learned that he had lot meant anything much at all by his inflammatory attacks on Supreme Court precedents and on Congress, and by his endorsement of another man’s "splendid" speech equating abortion with murder. We learned that he is remarkably ignorant of the Supreme Court’s work-even, apparently, unaware that the Court held in Roe that a fetus is not a "person" with a right to life protected by the Fourteenth Amendment’s due process clause.
I, for one, learned that Thomas is not as sharp, not as candid, and not as courageous as I had assumed him to be. And not good enough for the Supreme Court, even assuming that hewas the victim of an outrageously false claim of sexual harassment. (I confess to having previously offered a halfhearted endorsement, in print, which I regretted before I heard anything about sexual harassment, and hereby retract.)
Let’s do better next time.