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When Joe Loved Clarence

by Alexander Cockburn And Jeffrey St. Clair

What about the Supreme Court? With that question liberal backers of Gore have been attempting to scare progressives, abandoned on nearly every other issue, from jumping on board the Nader bandwagon. Look, they say, at what George W. Bush has said about the kind of person he would put on the court: someone with the judicial philosophy of Antonin Scalia, the court’s most malign intellect, or Clarence Thomas, the worst justice draped over the high bench since Rehnquist.

But when asked what kind of judge Gore and Lieberman might hoist onto the court, there’s no response, as if the question was unfair. But it doesn’t take a tiring trip through the Congressional Record to disclose what kinds of justices Gore and Lieberman thought fit for the bench: namely Scalia and Thomas.

Antonin Scalia was approved by the Senate on Sept 17, 1986 by a vote of 98-0. There were two senators absent: Barry Goldwater and Jake Garn. “I announce that the Senator from Utah [Mr. Garn] and the Senator from Arizona [Mr. Goldwater] are necessairly absent”, Sen. Alan Simpson, explained at the time. “I further announce that, if present and voting, the Senator from Utah [Mr. Garn] would each vote “yea”. Senator Al Gore voted to confirm Scalia.

Although Gore opposed Clarence Thomas, he did so late and could not resist lavishing praise on someone who has proved to be one of the Court’s most incompetent jurists. “Clarence Thomas is an impressive man with an astounding background,” Gore told his fellow senators on October 8, 1992. “Even before his nomination to the Supreme Court, he was an inspiration to those who struggled against poverty and racism. His life shows that adversity need not lead to a life of quiet desperation, but can produce a strength of character that is a beacon for all who will follow I believe there is no question of Judge Thomas’ competence… He possesses a quick and incisive intellect. He speaks and writes with precision, power, and persuasiveness. The term `hard-working’ cannot begin to describe the habits that have taken him so far in so short a time.”
Gore ultimately voted against Thomas, citing his reference to members of congress as “petty despots”, his fixation on the principles of “natural law” and his reluctance to answer a direct question on his attitude toward the constitutionality of Roe versus Wade.

Lieberman was less conflicted. On October 4, 1991, the senator from Connecticut strode to the well of the senate and gave a pious speech announcing his esteem and support for Thomas. Lieberman confessed to his colleagues that his decision to back Thomas’ nomination had been consummated at an intimate one-on-one session with the federal judge in the senator’s office. “When I met with Judge Clarence Thomas in my office this past summer, I was impressed by his strength of character, independence of mind, and intellect generally. I found him to be an engaging, thoughtful man who clearly enjoys grappling with complex legal issues and delights in the special challenges and responsibilities of being a judge,” Lieberman carolled. “His academic and professional achievements are testimony to his appreciation for the value of hard work and determination-qualities that, in my mind, are too often overlooked in evaluating judicial nominees, but the importance of which cannot be overstated because being a good judge requires the willingness to do hard work. Indeed, his entire life is an inspiring example of what an individual who has faith, ability, and a desire to work can achieve in this country, even in the face of the worst kinds of prejudice and adversity. As he himself has said, `Only in America.'”

Lieberman, the former attorney general of Connecticut, claimed to have given Thomas a private grilling on the finer points of his judicial philosophy, his understanding of precedent and the intent of the framers of the Constitution. Thomas passed the Lieberman exam with flying colors. “I was reassured by his answers”, Lieberman said. “He did not and does not strike me as a rigid ideologue. In fact, his life story demonstrates that he does not find easy comfort in convention, but challenges settled truths with vigor and intelligence.”

While many Democrats, including Gore, were unnerved by some of Thomas’ writings and speeches, Lieberman said that it was unfair to evaluate the judge on such arcana. Instead, Lieberman scrutinized Thomas’ court opinions and again found no cause for concern. “Judge Thomas’ judicial opinionshave a distinctly different cast. They are, on the whole, solid, thoughtful and balanced.”

For most liberals and constitutional scholars, Thomas’ fanatical adherence to the crack-pot religio-legal theory of “Natural Law” was enough to send him packing. Lieberman, however, not only dismissed this as an issue, he actually made a quasi-endorsement of its legal validity. “The uproar over Judge Thomas’ exploration in his writings of principles of natural law is curious and, I fear, on the part of some of should know better, disingenuous. “Jurists of all persuasions have looked to higher principles in interpreting the Constitution and have found emanations and penumbras and original intent. Indeed, natural law as applied to debate over equal rights-which is how Judge Thomas limited it in his conversation with me and in his testimony-has a distinquished history in our nation and, in fact, I am proud to say found its origins in my state of Connecticut.”

Despite Lieberman’s averrals, Thomas had embraced the Natural Law creed in two other areas, abortion and separation of powers. He extolled a Heritage Foundation white paper by Lewis Lehrman which used a natural law approach to conclude that at the moment of conception fetuses are entitled to the full protection of the constitution. Thomas said he found the Lehrman essay “a splendid example of applying natural law.” (Both Lieberman and Gore expressed similar views on the sanctity of the fetus.)

Lieberman also passed over Thomas’ hysterical excoriation of William Rehnquist for his betrayal of the principles of Natural Law in a 1990 Supreme Court case on the independent counsel law. The ruled on a 7-1 vote that Congress could legally appoint an independent counsel to investigate wrongdoing by high-ranking Federal officials. Typically, Scalia was the lone dissenter. Scalia fulminated that the theory of natural law prohibited the Congress from appointing special prosecutors, no matter how serious the criminal allegations against the executive official. Ridiculously, Thomas was so overwrought that he pronounced the case the most important since Brown verses Board of Education and angrily chided Rehnquist for his cowardice in siding with the “judicial interventionists”.

At the time of the pre-Anita Hill hearings for Clarence Thomas, there was much debate over the “litmus test” questions. Pro-choice Democrats wanted to know if Thomas had given the Bush team assurances that he would join with Scalia in attempting overturning Roe v. Wade. (David Souter, nominated by George H. Bush, had apparently kept his views on the matter to himself during his vetting by C. Boyden Gray, only to emerge later as one of the strongest pro-choice voices on the bench and, overall, the most reliable liberal, aside from the Ford-nominated Justice Stevens.)

Lieberman, however, denounced such inquiries of Thomas as evidence of impolite nosiness. On controversial issues, Lieberman prefers a don’t ask, don’t tell approach for federal judges. “I take Judge Thomas at his word, given under oath, that he has not reached a conclusion on the legal issues underpinning Roe versus Wade”, Lieberman said. “Those who doubt that and assume he has passed a White House litmus test on the issue also have to assume that the next nominee would face the same testingI find myself in the minority in suggesting that Judge Thomas and other nominees should express fewer, rather than more, opinions on controversial constitutional cases that have been heard by the Court, or are likely to be heard by the Court.”

Lieberman expressed his outrage about “the politicization of the judicial nominations process.and the tendencyto treat the Supreme Court appointments as just one more campaign promise”. Ever the DLC Democrat, Lieberman then went on to attack his liberal senate colleagues (mainly Patrick Leahy) for their tough questioning of Thomas during the initial round of hearings. “I have concluded that the dissatisfaction I felt after the Thomas hearings is more a reflection ofthe shortcomings of the process, of which I see Judge Thomas as a victim rather than an indictment of his abilities or character…We must not deny him entrance because we are disturbed by how political the nomination process has become, or because we are concerned about the direction that previous nominees, already confirmed by the Senate and sitting on the Court, may take. In my opinion, it would be unfair and unjust to this man, Clarence Thomas.”

Even after NPR’s Nina Tottenberg unearthed Anita Hill, Lieberman remained steadfast in his loyalty to Thomas. In a speech on the Senate floor on October 8, he announced that while he supported an internal investigation of the charges he still supported the nomination. Indeed, Lieberman claimed that he and his staff had conducted their own inquiry into to Hill’s charges and had found nothing to back them up. “I have contacted associates, women who worked with Judge Thomas during his time at the Department of EEOC”, Lieberman declared. “And in the calls that I and my staff made, there has been universal support for Judge Thomas, and a clear indication by all of the women we spoke to that there was never, certainly not, a case of sexual harassment, and not even a hint of impropriety.”

After the Hill hearings, Lieberman backed down. Ralph Nader has told us that he played a role in convincing Lieberman to shift his vote. But his initial support of Thomas makes clear that Lieberman was more than willing to back a bumbling jurist who clings to outlandish legal theories based on the “divine inspiration” of the Constitution. Of course, Lieberman is believes that the First Amendment means “freedom of religion, not freedom from religion.”

But it is Gore himself who sinks the argument now advanced by his adherents that a vote for Gore/Lieberman is a vote to save the Supreme Court from falling into the hands of Visigoths. In his torturous rumination on the Thomas vote Gore said: “In reviewing Judge Thomas’ judicial philosophy, I have not considered whether he is a conservative or a liberal. In the history of the Supreme Court, choices made on such a basis have had a way of backfiring.” CP

Jeffrey St. Clair is editor of CounterPunch. His new book is Killing Trayvons: an Anthology of American Violence (with JoAnn Wypijewski and Kevin Alexander Gray). He can be reached at: Alexander Cockburn’s Guillotined! and A Colossal Wreck are available from CounterPunch.

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