Next, Clarence Thomas, who has insisted blacks don’t need special consideration, that they should earn their positions the hard way, invoked racism as a special consideration the moment he got into trouble, precisely so he wouldn’t have to defend against the harassment charge the hard way. (“I will not get into any discussion about my private life,” he said, and Democrats on the Judiciary Committee obliged him. Only a week earlier, he and the White House had peddled his private life as his main qualification for the job.) Even though Thomas is black, and pejorative racial stereotypes about sexuality do exist, does that mean his behavior cannot be examined and held to the standards of the law of the land? Thomas seemed to think so.
Thus, conservatives capitalized on the very brand of affirmative action policy they nominally reject: fixed quotas and lowered standards applied on the basis of skin color. The southern Democrats, too, used Thomas as a cipher; if voting for him would get them kudos from their constituency, they would support him, no questions asked. Sad to say, many liberals participated in this form of deference to skin color, though it is not the brand of affirmative action most would otherwise defend. Hobbled by the Dixiecrats, by their own unwillingness to play hardball politics, by Senator Ted Kennedy’s personal troubles, and by a general squeamishness about confronting racial issues head on, liberals on the Judiciary Committee did exactly what many people most fear and resent about affirmative action: They brushed aside the question of the candidate’s competence.
* * *
Although the American Bar Association rated Thomas as only “minimally qualified” for the Supreme Court, the Judiciary Committee failed to investigate his competence in any serious way. They deferred to him when he insisted he had no opinion on issues of jurisprudence or specific cases, or when he said it would be “inappropriate” or “improper” for him to comment on recent cases. Improper for someone applying for a permanent job on the Supreme Court? When the committee questioned Thomas about legal views he had expressed in speeches, he often replied that his statements weren’t really his positions, that they were thoughts of the moment, and that he hadn’t really understood the implications of decisions about which he had offered strong opinions. His strongest defense was that his critics had mistaken mere opportunism for extremism.
The Judiciary Committee largely ignored all these signs of his inability to articulate a coherent position, and assumed instead that he was stonewalling to avoid giving opponents anything to use against him. But it was entirely possible and plausible that Thomas simply didn’t know constitutional law and didn’t follow the jurisprudential disputes about recent cases of the Supreme Court. No one was willing to push very hard to find out.
The Democrats’ great political failure on affirmative action went virtually unnoticed. They allowed the conservatives to act out a bankrupt version of affirmative action, one that ought to get elected representatives into trouble with both black and white voters.
As Ronald Dworkin noted in the New York Review of Books, Thomas asserted views in a speech to the Heritage Foundation that would logically require the Supreme Court to outlaw abortions after conception. (In other words, the Supreme Court should not just roll back Roe v. Wade so that states may outlaw abortions if they wish, but it should revoke the states’ current authority to permit abortions.) If, as he told the Judiciary Committee, he was merely trying to appeal to his conservative audience in that speech, had only skimmed the article whose ideas he endorsed, and had thought the ideas would be interesting “to play around with,” then he has a rather cavalier attitude about the responsibilities of a federal judge to develop considered views on issues over which he will exercise great power.
Thomas gave us other glimpses of his cavalierness toward judging. In maintaining he had never discussed Roe v. Wade, he was saying he felt no need to engage with the legal community or anyone else about one of the major constitutional and political issues of his era.
Compare that last part with this:
Asked repeatedly about whether the Supreme Court should have decided Bush v. Gore, the case that settled the 2000 election, Alito declined to answer, saying he hadn’t studied the case.
Making him possibly the only politically connected judge in America who hadn’t.
Greasy, slimEy, will-say-anything-to-get-on-the-Supreme Court liar.