The justice's wife's tale.

The justice's wife's tale.

The justice's wife's tale.

Policy made plain.
March 15 2002 3:32 PM

The Justice's Wife's Tale

If you're not careful, you can squander an entire journalistic career swatting flies from the Wall Street Journal editorial page. But sometimes resistance to temptation is futile. The question ordinarily posed by these classics is whether the author is staggeringly disingenuous or sincerely addled by ideology. In the case of an op-ed published in the Journal last Thursday, though, there is a more benign explanation. This article was an attack on Democrats for opposing President Bush's nomination of Charles W. Pickering for a seat on the 5th Circuit Court of Appeals. (The Senate Judiciary Committee killed the nomination later that day, on a party-line vote.) The author was Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, whose own famous confirmation ordeal has made him a martyr-saint of American conservatism. Thomas, as you will recall (or if not, his wife will help you), was pummeled so brutally by vicious gangs of Democrats and liberals—who accused him of being a right-wing ideologue with a closed mind about abortion rights, among other vicious lies—that he now lies comatose in the Supreme Court, able only to issue reliably right-wing opinions and vote against abortion rights. Naturally his wife is bitter, and self-righteous bitterness on behalf of an embattled spouse is forgivable, even appealing.

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Virginia Thomas is also "director of executive branch relations" at the Heritage Foundation, the well-known right-wing propaganda machine that masquerades as a tax-exempt nonpolitical research institution. ("Director of executive branch relations" is either a joke job or an amusing confirmation of Heritage's true nature.) That a Supreme Court justice's spouse could write this article, and the nation's most influential conservative opinion forum could publish it, illustrates that, for all the talk of the insular, unworldly liberal culture of Washington, there is now a conservative Washington culture large enough and insular enough for its members to live entirely within an echo chamber of their own views.

Or maybe I'm the one who is divorced from reality. But here is reality as I see it. The Constitution gives the Senate the authority to "advise and consent" on the appointment of federal judges. Whatever this means, it must mean more than the obligation to rubber-stamp the president's nominees or merely to pass on their basic competence. Since Ronald Reagan, presidents of both parties have become more careful to nominate judges who reflect their own judicial philosophy—and there is nothing wrong with that. In response, the Senate—especially when controlled by the opposing party—has weighed judicial philosophy more carefully in exercising its advice and consent—and there is nothing wrong with that, either. Both political parties oppose nominees from the other one and pompously deplore "politics" when the other party does the same.

Somewhat more tendentiously, it seems to me that Republican presidents have been more disciplined than the one recent Democrat, Bill Clinton, about nominating judges who won't surprise them, which makes the Republican indignation about "ideological" opposition to the president's choices more hypocritical. On the other hand, Democratic politicians and interest groups have been somewhat less principled about distinguishing judicial philosophy—how a judge interprets the law and the Constitution—from the vulgar question of whether they like the outcome. Meanwhile, though, Republicans pretend or imagine that a few magic words like "judicial restraint" and "strict constructionism" add up to a philosophy beyond legitimate dispute—that to believe otherwise is not just misguided but more like cheating—even though it is a philosophy even they don't apply with any consistency.

It seems to Virginia Thomas, by contrast, that anyone who opposes judicial nominees of Republican presidents—people like Tom Daschle and other Senate Democrats—represents the "hard left" that cares only "about abortion and homosexuality" and doesn't "think of [opponents] as human." All these accusations are made twice. Oh yes, and these hard leftists "demonize" people they disagree with! (Can you imagine someone doing that?) Whereas "Senate Democrats are actually claiming that some views are so politically incorrect that judges (or others) cannot be allowed to hold them," she and her husband and Judge Pickering are defending "a culture … tolerant of philosophical disagreement."

In reality—unless I'm crazy—"hard left" is not an accurate description of the average Democrat on the Senate Judiciary Committee. In reality, both sides of these disputes care disproportionately about abortion. (Homosexuality seems more like a right-wing obsession.) That is why abortion is so contentious. If one side stood for single-issue "litmus tests" and the other stood for "tolerance of philosophical disagreement," we wouldn't be having these set-piece standoffs every few years. The battles happen because both sides have litmus tests, which is another way of saying these are issues they feel strongly about. In Virginia Thomas' opinion, should Republican senators vote to confirm a judicial nominee who believes that Roe v. Wade was correctly decided? Or is that view "so politically incorrect that judges (or others) cannot be allowed to hold" it—which is just an overheated way of saying you disagree?

Looking around the real world, it is especially hard to see this martyrdom that Clarence Thomas supposedly has suffered for the sin of holding views that the all-powerful hard left wants to suppress. He had a rough confirmation battle, but now he is a justice of the Supreme Court with a lifetime appointment, even though he clearly lied under oath—or at the very least willfully deceived—in claiming he had never discussed Roe v. Wade and had no opinion about it. He probably lied about more notorious matters, too. If he's in pain, it must only hurt when he laughs.

Michael Kinsley is a columnist, and the founding editor of Slate.