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Michael Kinsley

Fool Me Twice

By Michael Kinsley
Sunday, January 16, 2005; Page B07

Will President Bush actually have the guts to nominate Clarence Thomas for chief justice when that opportunity arises, which will probably be 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 Bush has that a more generous person than myself might even call integrity. 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's elevation to chief, resisting all the cries of, "Oh, for mercy's sake, you people -- not that again"? Those cries are starting preemptively, in an effort to cow the opposition party out of opposing a Thomas nomination. I wish I could be as confident of the Democrats' guts as I am of the president's.

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Ordinarily it's considered to be an advantage when a presidential nominee has already gone through a Senate confirmation hearing. One reason Bush chose Michael Chertoff for secretary of homeland security after his first nominee imploded is that Chertoff already had been confirmed as a federal judge. He's filled out the forms, been investigated, testified: Like a pre-approved mortgage, he can slip right through.

But Clarence Thomas is different, because his famous 1991 confirmation hearing was different. His strategy was to do or say anything that would allow him to crawl past the finish line. When the prize is a virtually invulnerable lifetime appointment, that's a good strategy. But it can and should haunt you when you put in for a promotion.

Thomas's performance at that 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. The fact that he was 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.

And, yes, some of Thomas's opponents may have been as demagogic and dishonest as he was. When Anita Hill is nominated for chief justice, we can consider her qualifications.

To take the most obvious example of an issue that was opened, rather than closed, by Thomas's 1991 testimony: Thomas avoided revealing his opinion about Roe v. 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 Thomas was in law school -- but no one could prove Thomas a liar during the few days of hearings. Several people have popped up since then with memories of having discussed Roe with Thomas. His views were as you would suspect, and he asserted them with a vengeance from the moment he joined the court.

Thomas's 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. 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. And we have endured too many sermons from Clarence Thomas, strict constructionist, to believe that the words of the Constitution have no meaning.

Another witness has come forward since the hearings on the question of Thomas's appetite for pornographic videos. Maybe he should never 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, Thomas 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, and no one thinks that this year's opinions are illegitimately "prejudging" next year's opinions. 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 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.

The writer is editorial and opinion editor of the Los Angeles Times.


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