Don't get fooled again

THE BALTIMORE SUN

WILL PRESIDENT BUSH actually have the guts to nominate Clarence Thomas for chief justice when that opportunity arises, probably soon? You know he's just aching to do it. Because of their shared judicial philosophy, of course. But also because of that arrogant willfulness Mr. Bush has. Heck, why be president if you can't rub your critics' noses in it?

And will the Democrats have the guts to oppose Justice Thomas' elevation to chief?

Justice Thomas' performance at his 1991 confirmation hearing, the things we know now that we didn't know then, even the things we knew then but were bullied or rushed into ignoring, are not just fair game. They are disqualifying. If he wasn't unworthy of the Supreme Court when his confirmation hearings began, he certainly was by the time they were over. That he got confirmed as an associate justice anyway is no reason to give him a free pass to chief justice. Fool me once, shame on you. Fool me twice, shame on me.

In 1991, Justice Thomas avoided revealing his opinion about Roe vs. Wade, the abortion decision, by insisting that he didn't have one. It is beyond legitimate dispute that he tried to leave the impression that he'd never even thought or talked about Roe. This was implausible on its face - Roe is the most controversial Supreme Court ruling of the past century, and it came down while he was in law school - but no one could prove him a liar during the hearings. Several people have popped up since then with memories of having discussed Roe with him.

Justice Thomas' supporters say he didn't commit perjury because he testified only that he had never "debated" Roe, not that he had never "discussed" it. And he said that he had no view on Roe "this day," which doesn't make him a liar if he expressed a view some other day.

This is pathetic. But it's also irrelevant. The standard for becoming chief justice ought to be a bit higher than the standard for staying out of jail. Justice Thomas indisputably did his best to deceive senators trying to perform their constitutional duty of advice and consent. If that isn't something the Senate should consider when passing judgment on his fitness for an even higher job, then "advice and consent" has no meaning.

Another subsequent witness has come forward since the hearings on the question of Justice Thomas' appetite for pornographic videos. Maybe he never should have been asked about this stuff, but that doesn't give him the right to lie about it. Meanwhile, various remarks and rulings by Justice Thomas since 1991 have cast doubt on his professions of agnosticism on almost every important legal issue during his confirmation.

Because he chose an outright fib on abortion, he relied somewhat less than most recent Supreme Court nominees on the silly pretense that discussing actual judicial issues at their confirmation hearings would amount to "prejudging" future cases. It's silly because sitting judges do nothing else but issue opinions on judicial issues.

The nomination of a sitting justice for elevation to chief, if it happens, ought to snuff this pretense once and for all. After 14 years of strongly held and strongly worded opinions, it would be preposterous for Justice Thomas to decline to discuss his judicial ideology, or to insist that he does not have one, on the nonexistent principle that a judge should never tip his hand.

It would be preposterous, but that is no guarantee that it won't happen. Saying the preposterous under oath has served Clarence Thomas well so far. If he is given the opportunity to be preposterous again, and the Senate Democrats let him get away with it - again - they will get the chief justice they deserve, and they'll deserve the justice that they get.

Michael Kinsley is the editorial and opinion page editor of the Los Angeles Times, a Tribune Publishing newspaper. His column appears Sundays in The Sun.

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