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Thomas Lacks the Makings of ‘Greatness in the Law’ : Supreme Court: The various qualities of excellence that past justices have brought to our highest tribunal are nowhere to be found in this nominee’s undistinguished record.

Richard E. Sherwood is a Los Angeles attorney with O'Melveny & Myers.

Judge Clarence Thomas entered the Senate hearings on his nomination having been rated “qualified” to serve on the Supreme Court by the American Bar Assn.'s standing committee on the federal judiciary, with two members rating him “unqualified” and none rating him “well qualified.” Thus, Thomas would, if confirmed by the Senate, be the first justice not rated “well qualified” since Sandra Day O’Connor 10 years ago.

Is “qualified” good enough? Justice Felix Frankfurter cast light on the subject in an eloquent 1957 speech on “The Supreme Court in the Mirror of Justices” at the University of Pennsylvania Law School. He grappled with the question of whether prior judicial service was a desirable or an indispensable qualification for service on the court, and he examined the careers of 75 of the 90 justices who had sat on the court up to that point, omitting only those who had been there during his tenure.

Of the 75, 28 had no prior judicial service, seven had served on a bench for two years or less and nine had sat for six years or less. Frankfurter noted that “of the 16 justices whom I deem pre-eminent, only five came to the court with previous judicial experience, however limited.” From this he concluded that “it would be capricious to attribute acknowledged greatness in the court’s history either to the fact that a justice has had judicial experience or that he had been without it.”

In defining the qualities of a “great” justice, Frankfurter opined:

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“Greatness in the law is not a standardized quality, nor are the elements that combine to attain it. To speak only of justices near enough to one’s own time, greatness may manifest itself through the power of penetrating analysis exerted by a trenchant mind, as in the case of (Joseph P.) Bradley; it may be due to persistence in a point of view forcefully expressed over a long judicial stretch, as shown by (Stephen J.) Field; it may derive from a coherent judicial philosophy, expressed with pungency and brilliance, reinforced by the Zeitgeist, which in good part was itself a reflection of that philosophy, as was true of (Oliver Wendell) Holmes; it may be achieved by the resourceful deployment of vast experience and an originating mind, as illustrated by (Louis D.) Brandeis; it may result from the influence of a singularly endearing personality in the service of sweet reason, as (Benjamin N.) Cardozo proves; it may come through the kind of vigor that exerts moral authority over others, as embodied in (Charles E.) Hughes.”

Thomas fails this test. His record at Yale Law School was undistinguished. His courtroom experience is all but invisible. He worked as a faceless staff member for an able senator and then as a controversial, though scarcely pioneering, head of the Equal Employment Opportunity Commission. And, for the past 18 months, he has served, again without distinction, as a judge on the Court of Appeals in the District of Columbia.

Thomas is not a leader of the Bar like Lewis F. Powell, Robert H. Jackson, John M. Harlan, Samuel F. Miller, Hughes or Thurgood Marshall, not a gifted academic in the Harlan F. Stone/Frankfurter mold, not a person of broad perspective in public affairs, like John Marshall, Brandeis or Hugo L. Black.

Rather, he seems to have been chosen solely because of race and not because of outstanding qualities as a lawyer, legal thinker or public servant. His rise from poverty and his firsthand experience with the sting of discrimination, however exemplary, do not differentiate him from many others of considerably greater achievement. Indeed, Stanford’s Gerald Gunther, perhaps the pre-eminent constitutional scholar in the country, is the immigrant son of a German refugee butcher.

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It has been said that if Thomas is not confirmed, President Bush is apt to appoint someone equally conservative. But that is the wrong standard. Lawyers of distinction and intellectual force can readily be found on the right of the philosophical spectrum. Alphabetically, federal Judges Frank H. Easterbrook, Amalya L. Kearse, Alex Kozinski, Richard A. Posner, Pamela A. Rymer and Ralph K. Winter immediately come to mind. At the end of the day, mediocrity is simply not good enough for the Supreme Court of the United States.


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