I remember well the Clarence Thomas confirmation hearing in 1991. We were on vacation at Mohonk Mountain House, and they set aside a room with a television to watch the hearing. Anita Hill was testifying about Thomas’ sexual harassment, a pubic hair on a coke can.
Thomas was nominated to fill Thurgood Marshall’s seat, a seat too large for anyone to fill. It was the “black” seat, and so a black man was chosen, and somehow Thomas was the person chosen by President George H.W. Bush. At the time, he had been a judge on Circuit Court for the District of Columbia for about a year, after stints at the Department of Education and a dubious tenure as chair of the EEOC.
While almost everyone else in the room was aghast at the allegations of Anita Hill, whether because they believed her or believed it was a “high-tech lynching,” it was a disgusting side-show. It was clear that confirmation hearings were no place to “try” an allegation of impropriety, whether it’s sexual or otherwise, against a nominee. If Hill had a complaint, despite her following Thomas from DoE to EEOC without either running away from this putative harasser or using the mechanisms provided by law to address his conduct, this wasn’t the place to air it or resolve it.
But worse was that it stole the attention of a nation away from what I considered the far more important issue: Was Clarence Thomas qualified to be a Supreme Court justice? The breadth of his legal career was fairly limited and undistinguished. He was very young, a mere 43 years of age. He lacked experience in the law and life. And, watching him testify at the hearing, I was unpersuaded that he was particularly bright. Not that he was dumb, but that he was not possessed of the intellect that one would hope for a lifetime seat on the Supreme Court.
Nonetheless, President Bush chose Thomas, and the Senate confirmed him, 52-48.
For most of his tenure on the Supreme Court, Thomas tagged along on Justice Antonin Scalia’s coattails. Scalia, for better and mostly worse, was an intellectual leader on the Court. Thomas was a follower. It was almost like giving Nino two votes. Not quite, but close.
David Cole, the legal director for the ACLU which may well end up before the Supreme Court on occasion, such that any criticism he may have needs to be couched in such a way as to not impair his ability to stand before the bench and argue his cause, raises the lawyers’ side of the question. It’s not about whether putative nominee, Amy Coney Barrett, is a papist or handmaiden, but about the jurisprudential lineup.
With a court composed of six conservatives and three liberals, it would be extraordinarily difficult for liberals to win, and conservatives to lose, virtually any ideologically charged dispute. And with a court so unbalanced, and likely out of step with the public, attacks on its legitimacy will increase.
Cole raises the 5-4 decisions in controversial cases of the past, and the controversial cases that will be coming before the Court soon.
Of course, many important cases were decided 5 to 4 in the conservative direction — including decisions invalidating campaign finance laws, striking down the most important provision of the Voting Rights Act, recognizing an individual right to bear arms, protecting businesses from lawsuits, and of course, stopping the Florida recount to hand the contested election of 2000 to George W. Bush over Al Gore.
Most immediately, the Affordable Care Act is in jeopardy. The ACA, which has extended critical health insurance to millions of Americans and bars insurers from discriminating against those with preexisting conditions, has survived two constitutional challenges: the first by a 5-to-4 margin, the second 6 to 3. In California v. Texas, the Trump administration is arguing that the ACA should be thrown out — including its protection of those with preexisting conditions. The case rests on a highly implausible legal argument, but given how partisan the battles over Obamacare have been, it has a chance of succeeding before a court of six conservatives.
While the Supreme Court’s docket is mostly comprised of mundane legal issues, there are always highly controversial, hotly contested, ideological differentiated cases coming before the Court. And there are always fears that a case will soon come that will rock the world as we know it. Stoking these fears has been the foremost weapon against the current president’s Supreme Court nominees, creating the impression that anyone nominated by Trump was taken to the basement of Trump Tower and required to swear a blood oath of fealty while junior, Ivanka and Eric chanted in the background.
The structure of our system allows the president to nominate whomever he wants. What the Republicans did to Merrick Garland by not giving him a vote was a disgrace, but one they got away with through pure fiat. For at least the next few months, the Republicans control the Senate and can use their raw power again. That appears to be the plan, and no amount of threats and screaming will prevent it if they have the numbers. This is their chance to “own” the Court and they will not let it go.
Justices of the Supreme Court have a long history of disappointing their fans and foes. Whether Judge Barrett will be the handmaiden feared by the left or the handmaiden desired by the right is a mystery for now, despite the certainty both possess as to what she will do if confirmed as an associate justice.
But while others attack her for her religious beliefs, her adopted children, and the certainty that she will seal the deal to reverse Roe v. Wade, end the Affordable Care Act and the Voting Rights Act, and the rest of the litany of horribles anticipated by the left, no one ever really knows where a Supreme Court justice will end up. As David Cole notes, and it’s a point of utmost seriousness, the legitimacy of the Least Dangerous Branch is always at stake.
If this nominee is possessed of the intelligence, experience and temperament that qualifies her to be a justice, even if she doesn’t profess to being an empathetic papist, she will understand and appreciate this as does Chief Justice John Roberts and as did Justice Ruth Bader Ginsburg. She might not be your choice or mine, but the question is whether she is a qualified choice. Unlike Justice Thomas.