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October 16, 2000
When Joe Loved Clarence
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
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