POLITICAL FORECAST : Will Thomas’ Nomination Fight Damage the Court?

Robert H. Bork,former federal appellate judge and now a constitutional scholar at the American Enterprise Institute:

I don’t think (the court’s integrity) will be damaged, no. I think in the long run, if they keep this process up, it will be damaged, because what they (senators) are doing is insisting that people (nominees) make promises, in effect, of how they’re going to vote. People who get on the (Supreme Court) are not just going to say, “The hell with them (the Senate),” and vote the other way. I think the integrity of the court begins to be damaged by people giving promises to the Senate about how they’re going to vote. It’s the insistence of liberal Democrats on trying to get conservative Republican nominees to agree to their issues--or else.

I’m not optimistic about the future of the confirmation process. President Bush is going to have to keep nominating people whose views are wholly unknown or people of an ethnic or gender persuasion who may split the liberal coalition.

I don’t think (the fight over Thomas) will hurt public respect for the court. In fact, the polls were so strong for Thomas that you could say it helped the court.

Pamela S. Karlan,associate professor of law, University of Virginia:

That’s a tough question to answer before you know what Thomas will do when he’s on the court. We don’t have much of a track with him as a judge, so we have no basis of knowing whether he has a judicial temperament and is able to put aside personal predilections. He did seem, in his statement last Saturday, to become quite political.

After the Bork and (David H.) Souter hearings, I doubt there were too many people who didn’t realize that the Administration initiated, and Congress responded to, a process of really politicizing Supreme Court appointments. I don’t think there’s anyone in America, even President Bush, who could honestly say, with a straight face, that of 250 million Americans, Clarence Thomas was the most qualified person for the Supreme Court. I could name conservative black Republicans who are more qualified for the court than Thomas. The idea that the process wasn’t already political defies belief by anyone who’s given it a moment’s thought.

Bruce E. Fein, constitutional scholar and former Reagan Administration official:

I do think a cloud will hang over the Supreme Court, at least for some time, for two reasons. The sex-harassment claim was not frivolous . . . even in the eyes of Thomas. Then there is Thomas’ character and temperament. I can understand persons in his position having a single or double outburst, but to use the kind of language he did, directed at what he said were liberal interests groups--such language sustained for that length of time is something I would characterize as almost incontinent. I have never heard anything like that from a Supreme Court nominee--ever.

It casts a cloud over the evenhandedness, openness and fairness of the decision-making process when you have a nominee with that kind of suspicion over his head with regard to both his conduct and his temperament. It’s a subtle thing, but it erodes public confidence in the (court’s) decisions being fair and upright.

Randall L. Kennedy,professor of law, Harvard University:

I don’t think that (the court) will suffer in the long term, because people have short memories. Also, in our political culture, there’s a cult of the court. People want to very much look up to the court and the justices. That yearning to look up to a “nonpolitical” organ of government is deep. I think people will give into that.

The court’s prestige has been lowered because of what’s gone on in the last couple of months connected with Thomas’ elevation. I would add that for people in legal academia, the court’s prestige has been lowered not simply by his elevation, but by the elevation of others who were so obviously lacking in stature. This is a process that’s been going on.

It’s quite clear that Justices (Anthony M.) Kennedy, Souter and Antonin Scalia, as well, are not of the highest rank. In fact, most of the justices are not at the top of the legal profession. They are clearly people who are in their position for reasons outside of demonstrated learning and deliberation about legal matters. (Thomas) is just the latest illustration of that fact.

Gerald Gunther,William Nelson Cromwell professor of law, Stanford University:

Taking the question literally, my answer is no. I don’t think the entire court’s integrity will be damaged. I can see where Thomas will be carefully watched for a while, much the way Hugo Black was when he got on the court in 1937. He does come with a cloud, but I don’t see where the integrity is damaged.

There’s a lot of noise about politicizing the court, and that’s certainly a large part of the public reaction. My own sense is that the political fight we just had is not going to cause long-term damage to the court. A lot of people will be tempted to view the directions of the court as stemming only from a lack of integrity. I will be very unhappy with the directions of this court, but I will not think they arise from a question of integrity. Integrity is what I consider to be involved in impeachable offenses--people taking bribes and so on. I don’t see anything like that going on.

Charles Fried,Carter professor of general jurisprudence, Harvard University:

I think integrity is entirely the wrong word. Do people think they (justices) are going to take bribes? Or that, somehow, they’re going to be getting telephone calls from the White House and deciding cases on the basis of that? Integrity has something to do with honesty, following accepted procedures, corruption and so on.

I think any institution that was touched by the circus we were treated to last weekend is going to be somewhat lowered in national esteem. It was not exactly a dignified occasion. Thomas’ refusal to discuss or go one inch beyond specific charges or workplace matters was an attempt to control that--quite a proper attempt. He was right to want to make this as little shabby and as little personal as possible. If (the Senate) thought that was unresponsive, so be it.

Obviously, whenever you have this type of voyeuristic operation about an institution that’s supposed to be august and dignified, it does have the effect of somewhat lowering it. But it blows over.

Leonard Levy,constitutional scholar and former Andrew W. Mellon professor of humanities, Claremont Graduate School:

Regardless of what one thinks about Thomas, I don’t see how any deficiencies, or even mediocrities, on his part could impair the integrity of the court’s operation with respect to its ongoing work. Thomas will be only one of nine. The other eight will continue to operate as they always have, and I think that he will adapt very quickly. I regard (Thomas) as a mediocre person, but there have been mediocrities on the Supreme Court before, and they simply don’t pull their weight, at least for quite a few years.