To be sure, his ascent, by dint of will and courage, from grinding poverty to his current eminence has been dramatic and heartwarming and speaks well of America and him. However, Thomas’s life story should be of only minor relevance to the debate about his fitness to shape the life of the law for three or more decades. To think otherwise is to partake of pernicious thinking, about the Constitution and courts, that Thomas presumably opposes.
Two rationales for his nomination are in tension. One is that President Bush believes Thomas has the sort of judicial temperament that candidate Bush promised to seek. If so, Thomas is comfortable with the discipline of keeping his moral preferences hermetically sealed from his acts of judging. But the second reason some people praise Thomas’s potential as a justice is that his humble origins presumably have given him the “sensitivity” to empathize with individuals and groups whose disadvantages deserve redress. Here, then, is the rub: The best reason for nominating him is that he believes that redressing grievances is usually the responsibility of the political branches of government, legislative and executive, and that courts cannot step in merely because other agencies have not.
If Bush was right to nominate Thomas, it is right to defend the nomination forthrightly on the ground that Thomas believes this: Courts have been cavalierly rendering result-oriented decisions, basing conclusions on personal moral preferences rather than legal reasoning, shortcircuiting democratic processes in order to achieve by judicial fiat ends that are essentially political and properly achieved only by processes of persuasion.
Because Thomas is such a sympathetic figure, and has such slight judicial experience (16 months on the bench), the nomination of him may look like capitulation to the anti-intellectual, anti-constitutional, anti-judicial tenor of the anti-Bork campaign. The lyricism of Thomas’s life largely immunizes him against the sort of tendentious and demagogic attacks that defeated Bork. Unable to match wits with Bork, critics abandoned philosophic argument in favor of moral assault. The moral vanity of contemporary liberalism manifests itself in constant bragging about “sensitivity.” Bork’s critics said they had cornered the market on it. And they were murky about how “sensitivity” of the sort they so admire in themselves is supposed to serve in the work judges do.
Lawyers have a saying: When you have the law on your side, argue the law; when you have the facts, argue the facts; when you have neither, pound the table. Liberal senators and their allies in the civil rights lobby, reduced to table-pounding about the judicial nominees of conservative presidents, resort to the charge of insufficient “sensitivity.” The coming discomfiture of the sensitivity-mongers is going to be delicious. We have the remainder of the summer to savor in anticipation the September spectacle of Senators Kennedy and Metzenbaum tutoring Thomas in “sensitivity” about poverty and racism.
Thomas’s supporters may be tempted to take the politically easy and intellectually undemanding path, emphasizing his exemplary life rather than his jurisprudence. He is indeed intimately acquainted with the rough edges of American life. But judges do not have a mandate to decree social ameliorations; they are not licensed to wield power on behalf of whoever is not getting full justice from the political system. The severe ethic of judging requires practitioners of that craft to keep their moral sensibilities on a short leash. Courts do not exist to right all the wrongs that other government agencies have, for whatever reasons, refused to right.
Neither the adjective “unwise” nor even “unjust” is a synonym for “unconstitutional” when modifying the noun “law.”
Judges wear robes to efface personal attributes. Robes affirm the fact that judging, properly pursued, requires an austere self-denial-literally, denial of the self. Judges must ensure, by acts of will, that their personalities and politics are irrelevant to their decisions. True, to some irreducible extent, character is destiny even for judges. But the best judges stringently reduce the extent.
An admirable biography is no substitute for, or reliable indicator of, a sound judicial philosophy. A judge with a truly judicial temperament should try to expunge from his or her reasoning all influences other than legal arguments. Social origins, be they Holmes’s on Beacon Hill in Boston or Thomas’s in Pin Point, Ga., should not influence judicial reasoning. Such reasoning is about precedents, and the text of a law as the words were understood by intelligent people at the time of its enactment, and the law’s legislative history. Concerning constitutional questions, proper reasoning is about the text and structure of the document as seen in such light as is shed by whatever is known of the Framers’ intentions.
If Thomas and his supporters flinch from asserting the virtues of his philosophy rather than of his character, they will be truckling to the Senate Judiciary Committee’s “political correctness,” which is packed into the word “sensitivity.” Courts are degraded and constitutional law is distorted when judicial nominees are required to turn their confirmation hearings into an exercise in moral exhibitionism, stressing their “sensitivity” about this or that social problem rather than their understanding of the judicial function.
Thomas’s confirmation hearings would be a good time to affirm what the opponents of Robert Bork denied-that mind matters more than moral preening when choosing judges. Otherwise we shall have the kind of Court Roman Hruska suggested. In 1970, Senator Hruska, a Nebraska Republican, was desperate to devise a reason for supporting Nixon’s nomination of Judge G. Harrold Carswell. Hruska said: So what if Carswell is mediocre. So are lots of people, and they deserve representation on the Court.
Oh no they don’t.
