Probing Thomas' Soul


Washington. -- Doug Wilder put it badly, with his talk about "allegiance to the Pope," but his basic question is a fair one. Does Supreme Court nominee Clarence Thomas -- who was educated by nuns and trained briefly for the priesthood -- accept the Catholic Church's teaching about abortion?

Mario Cuomo has taken justifiable grief for claiming simultaneously to accept his church's teaching that abortion is baby killing and to believe in a woman's right to choose. That makes no sense. But you cannot denounce Mr. Cuomo for illogic and then complain that any special curiosity about a Catholic's views on abortion amounts to an unconstitutional "religious test" for office. If Mr. Cuomo is wrong, Mr. Wilder is right. The question needs asking.

It's not clear whether Judge Thomas still considers himself a Catholic. And Catholics often disagree with their church. But Judge Thomas has also endorsed the concept of "natural law," beyond the Constitution, as a basis for court rulings. He has called the right-to-life argument "a splendid example of applying natural law." This raises issues beyond the repeal of Roe v. Wade. If the fetus is a person with natural rights enforceable by courts, a view endorsed in the 1988 GOP platform, then states may not allow legalized abortion even if a majority of their citizens wish to do so. It would be absurd for the Senate to confirm a man for a lifetime seat on the Supreme Court without finding out whether he thinks this way.

Recent confirmation episodes have left the rules unclear. Should the Senate merely decide whether a nominee is "qualified" in terms of credentials and brainpower? Or may senators consider whether they find the nominee's judicial philosophy compatible? it's the latter, how closely may they question how that judicial philosophy might be applied in specific cases?

The correct answer is that senators have the right and duty to make judgments about a future justice's philosophy and to vote against him if they disagree -- or if he won't reveal it in reasonable detail. A senator should be free to say: "Mr. Thomas, I respect your accomplishments and your intelligence. You are fully qualified to serve on the Supreme Court. But I disagree with you on constitutional doctrine. No offense."

True, this would be a change. In recent decades there was almost automatic deference to a president's Supreme Court choices, just as there should be to a president's choices for his own administration. But presidents themselves used to be far less ideological on Supreme Court nominations. Eisenhower picked William Brennan and Earl Warren. Messrs. Reagan and Bush vowed not to make the same mistake. Fair enough. But it is also fair for a Senate controlled by the other party to be similarly ideological.

Is this a recipe for paralysis? No, it is a recipe for compromise. Ideally, it is a recipe for restoring true meaning to the phrase "advice and consent": the president should genuinely seek the Senate's advice in choosing a nominee. What strict constructionist could object to that?

Vice President Quayle says neither the president nor the Senate should interrogate a nominee too closely. It would be demeaning to the process and to the prospective justice to ask how he'd vote or rule on a case. No. What is demeaning is the notion we should be putting people on the Supreme Court without either the president or the Senate knowing where they stand.

The official Bush cop-out is to say that you want justices who will "interpret the Constitution" rather than "legislate from the bench," as if this avoids any ideological choice. But every Supreme Court justice -- even William O. Douglas -- has sincerely believed he or she was "interpreting the Constitution" and not merely "legislating from the bench." And every honest strict constructionist -- even Robert Bork -- acknowledges that "interpretation" requires some level of abstraction from the Constitution's exact language. That's where "judicial philosophy" comes in.

But a judicial philosophy only has meaning to the extent that it produces results in specific cases. That's why it is nonsense to suggest that general philosophical inquiry may be OK but questions on specific issues are not. Roe v. Wade is the leading constitutional controversy of the past two decades. Anyone with no opinion on it isn't qualified to sit on the Supreme Court. Why should this be a guessing game?

Nominees should not have to answer an endless series of hypothetical questions, or make promises about exactly how they will rule on future cases. But it is not unreasonable to expect an analysis of the major issues in constitutional law: abortion, church and state, affirmative action, criminal procedure, free speech and so on. And the analysis ought to be specific enough that the nominee's reputation for honesty is at stake in future rulings. What other incentive is there for truthtelling?

TRB wrote this commentary for The New Republic.

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