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Thomas: no tabula rasa


PICTURE A columnist appearing before an audience of readers. Someone asks a question about an issue -- capital punishment, say, or abortion, or busing.

The columnist replies, "It would be improper for me to discuss that because I plan to write about it in the future."

Now, there's considerable difference between columnists and justices of the Supreme Court, the greatest being that the latter are infinitely more important, despite what the former sometimes seem to believe.

The similarity is that the trade-secret response for either is insulting to the audience. Tuesday Sen. Joseph Biden noted that Clarence Thomas would, if confirmed, serve on the court well into the 21st century, and so it seems a good time to establish a 21st-century agenda for confirmation hearings.

And that is that the American people should know, and the Judiciary Committee should try to uncover, how a nominee thinks, how his mind works.

Clarence Thomas' biography has become the linchpin of his appointment to the court -- his impoverished childhood, his rise from humble beginnings. We know the color of his skin; now it is time for the content of his character and the caliber of his mind. We need to know not necessarily his intellectual and judicial destinations, but the roads he will travel to arrive at them.

More than his personal opinion on abortion, I want to know what he thinks of the reasoning of Roe vs. Wade. I hope the committee will continue to ask about that, about what he sees as its shortcomings and its strengths. I would like to know his thinking on privacy rights and the right to reproductive freedom.

I hope there will be many questions about Brown vs. Board of Education, the landmark school desegregation decision that Thomas has criticized in the past. I hope there will be many questions about his philosophy regarding sex and age discrimination, about affirmative action and the rights of the accused.

I hope he will be urged to speak publicly about the Constitution, about whether it should be interpreted narrowly or broadly, about how he would assess the work of Thurgood Marshall, about his judicial role models.

In a 1987 speech, Thomas cited "natural law" as the bedrock of the American political tradition, adding, "The thesis of natural law is that human nature provides the key to how men ought to live their lives."

Tuesday Biden said that Thomas' belief in natural law was the single most important issue before the committee. I hope someone will try to discover how Thomas squares his belief in natural law with its historical use as a tool of discrimination, about whether natural law is just another name for personal or religious beliefs and what role such beliefs should properly play in the decisions of the Supreme Court.

The next justice of that court should be not just competent but gifted. Thomas does not have the judicial track record to make that manifest, and so the Judiciary Committee must do so now.

It will not be done by pretending the life of his mind is classified information. That attitude was concocted to protect not the stature of the court but the nominee, who in giving a definite answer might give one committee members would dislike.

One refrain is that nominations to the high court are not and should not be political. That is a preposterous notion in light of the president's determination to nominate a conservative no matter how distinguished the liberal pool.

But it also ignores the fact that politics is just another word for a way of looking at the world, and that a way of looking at our world is something we want to know about any high official whose decisions will change our lives.

The notion that nominees to the court should not talk about matters of law assumes that what Souter, at his own confirmation hearings, called "the promise of impartiality" is an absolute, and that judges come to us with a tabula rasa. The truth is that judges bring their past, their philosophy and their political orientation to the bench. Sometimes they make decisions because of them, and sometimes in spite of them. That is their job.

The job of the Judiciary Committee, acting on our behalf, is to find out everything it can about those things, to labor mightily to reveal the mind within the man, for now and for the century ahead.

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