Clarence Thomas and Harriet Miers: What's The Difference?

I love what Clarence Thomas has done while on the Supreme Court. Even as he continues to distinguish himself on the SCOTUS bench, whenever his name comes up I recall the horrible confirmation process he was forced to undergo. His success gives me a continued sense of pride and vicarious vindication.

I think of Justice Thomas often now as I watch Harriet Miers being hammered daily -- by the right, not the left. What reminds me of Thomas is that this time, the right is attacking Miers for the same perceived shortcomings that liberal opponents raised about Thomas. Then, conservatives vigorously rejected the liberal attacks. Now they are using them against Miers. This is yet another example of the inconsistency and sheer vacuity of much of the conservative opposition to the nominee. Consider:

1. Thomas had very light experience. He'd never practiced law, except for a three-year stint in the Missouri Attorney General's office, where he focused on state tax issues - not exactly the training ground for a SCOTUS seat. Then he was in-house at Monsanto for two years, after which he returned to work for now-Senator Danforth as a legislative aide. Not a lot of Olympian-level legal training there, either. After three years with Danforth, President Reagan appointed Thomas assistant secretary for civil rights in the Department of Education. Soon after Reagan promoted him to head the Equal Employment Opportunity Commission (EEOC), where he stayed until 1990, when Bush I appointed him to the D.C. Circuit. After barely a year in that seat, Thomas was elevated to the Supreme Court when Thurgood Marshall retired in 1991. The rest, of course, is history.

Let us pause here to consider again the comments of George Will on the lofty heights to which the brain of a would-be SCOTUS justice must aspire:

[C]onstitutional reasoning is a talent -- a skill acquired, as intellectual
skills are, by years of practice sustained by intense interest. It is not
usually acquired in the normal course of even a fine lawyer's career.

How about that? I don't think Justice Thomas's pre-SCOTUS career would be described even as that of a "fine lawyer." It looks like a fairly undistinguished legal career with lots of political positions and bureaucratic administration thrown in (albeit at high levels). It's not clear to me that Thomas had "years of practice" in constitutional law, or that he had an "intense interest" in the subject.

Turning to Harriet Miers, in today's edition of Opinion Journal's Political Diary, a subscription service, John Fund raises the question of Miers' background:

The portrait of Harriet Miers emerging from interviews with her friends and
colleagues in Texas is largely a consistent one. She is universally regarded as
bright, hard-working and remarkably gracious. But she also clearly has a steep
learning curve when it comes to serving on the Supreme Court.

On today's show Rush Limbaugh stated that the real problem with Miers is that she "has not proven herself as a true scholar of the Constitution."

What John, Rush and others seem not to recognize is that whatever Thomas's experience, that of Harriet Miers far surpasses anything he had done by the time of his elevation to SCOTUS. Was Thomas "a true scholar of the Constitution?" Why was Thomas's SCOTUS "learning curve" any steeper than Miers'? Why does a different standard seem to apply to Miers?

2. Speaking of Thomas's level of interest in constitutional law, his confirmation hearings were remarkable on that point, to say the least. Those of us willing to admit to being old enough to have followed closely the Clarence Thomas confirmation hearings remember the controversy generated by then-Judge Thomas's comments on Roe v. Wade and on the subject of abortion generally. You'll see all that unfold at this web site, which contains the entire trancript of the Thomas hearings.

The Democrats were intensely interested in Thomas's views on Roe v. Wade. Incredibly, Thomas pretty much testified that he had no opinion on Roe. In a famous exchange, Senator Leahy asked Thomas whether he had ever even discussed that decision with anyone. Thomas steadfastly insisted he had not done do. Here are some excerpts:

JUDGE THOMAS: The case that I remember being discussed most during my early part of law school was I believe in small group with Thomas Emerson may have been Griswold since he argued that. And we may have touched on Roe v. Wade at some point and debated that, but let me add one point to that, because I was a married student and I worked, I did not spend a lot of time around the law school doing what the other students enjoyed so much, and that's debating all the current cases and all of the slip opinions. My schedule was such that I went to classes and generally went to work and went home.

. . .

SEN. LEAHY:Have you ever had discussion of Roe versus Wade other than in this room? (Laughter.) In the 17 or 18 years it's been there?

. . .

SEN. LEAHY:Well, with all due respect, Judge, I have some difficulty with your
answer, that somehow this has been so far removed from your discussions or feelings during the years since it was decided while you were in law school. You've participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges or immunity clause. You've referred to Lewis Lehrman's article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum absent some very clear considerations of Roe versus Wade, and in fact, twice specifically citing Roe versus Wade. . . .

JUDGE THOMAS: Senator, your question to me was, did I debate the contents of Roe versus Wade, the outcome in Roe versus Wade, do I have this day an opinion, a personal opinion, on the outcome in Roe versus Wade, and my answer to you is that I do not.

Come back to the present. Consider the biting comments of Laura Ingraham, who finds it outrageous (and even laughable) that Harriet Miers has not spoken out, somewhere, sometime, on Roe v. Wade. And yet Thomas testified, under oath, that he not only had not spoken out on that case, he didn't even have an opinion about it.

Do you see any inconsistency here? Does it make you wonder how Ms. Ingraham, who was Thomas's law clerk, could possibly have forgotten his position on Roe, which was much-ridiculed at the time?

One last point: Thomas actually testified that he recognizes the existence of a constitutionally-protected privacy right:

JUDGE THOMAS: Senator, the -- without commenting on Roe v. Wade, I think I have indicated here today and yesterday that there is a privacy interest in the Constitution, the liberty component of the due process clause, and that marital privacy is a fundamental right. And marital privacy then would be -- can only be
impinged on or only be regulated if there is a compelling state interest. That is the analysis that was used in Roe v. Wade, you're correct. I would not apply the analysis to that case, or can't do it, in this setting, and I have declined from doing that in this setting. The analysis separate from that case, if that's the test, the compelling interest test, I don't have a problem with that particular separate analysis, separate and apart from that case. But I think it's inappropriate for me to sit here as a judge and to say that I think that that should be used in a case that could come before the Court, for the reasons that I've stated previously."

And again:

JUDGE THOMAS:And what I'm saying is that the compelling interest test I do not quarrel with, and I do not quarrel with the application of the compelling interest test where the right of privacy is found to be fundamental. My point is
that I cannot apply that test in the specific instance involving the issue of abortion involved in Roe v. Wade. That's what I'm declining to do.

Imagine the firestorm that would result if Harriet Miers made a similar statement. Even John Roberts caused great heartburn on the right with a similar comment during his confirmation hearings.

I am not saying there are not reasons to be concerned about Harriet Miers as a SCOTUS nominee. It does seem, however, that most of the stated reasons for the opposition of so many conservatives cannot withstand scrutiny and seem to be flat-out concoctions, often elaborate ones. It is difficult to reconcile, for example, conservatives' acceptance of Thomas's perceived weaknesses and their hostility to Miers because of similar perceived weaknesses. Although they complain loudly that Bush broke his promise to appoint justices in the mold of Scalia and Thomas, Miers looks an awful lot like Thomas to me.

Again: The reasons for most conservative opposition to Miers seem to be emotional. It's not a question of the nomination President Bush did make, it's the one he did not make. Because he did not appoint a member of the group of candidates preferred by most conservatives, they feel betrayed, and many are bitterly disappointed. That's why their reasons for opposing Miers seem to be a moving target-- they're trying to find a rational basis for an emotional belief. That's why every anonymous tidbit that seems negative about Miers is eagerly scooped up and reported widely-- not by blogs alone, but by established journalists as distinguished as John Fund. I think that's also why some conservatives respond with such anger to posts like this one. Anger, after all, is another emotional response to reality.

UPDATE: There is humor in all this, by the way. Commenter Ben Wisdom has written a song about all this, "Swing Roe, Sweet Harriet." It's brilliant.