In an earlier post which has gotten some attention, I explained why I thought rational Democrats could support Justice Scalia as a replacement for the Chief Justice should he retire. With conservative circles now supporting Justice Thomas as a possible Rehnquist replacement, I thought I would write my views on why I don’t expect that to happen.
Much of what I wrote about why Democrats could support Justice Scalia (including ethics issues) could apply equally to Justice Thomas (though Justice Thomas’s opinions are less caustic than Justice Scalia’s). But I see two salient differences with a Thomas nomination:
(1) Any confirmation hearing for Justice Thomas would provide Democrats (and the country’s cable media, which loves salacious stories) to reinvograte the investigation into the Anita Hill story. David Brock, who wrote The Real Anita Hill and whose evidence was relied upon by supporters of Justice Thomas, has claimed now that his book is made up of lies. Timothy Noah of Slate has noted, in reviewing Brock’s newer book, Blinded by the Right, “the unique difficulty posed by any narrative that begins, ‘I’m a liar, here’s my tale.'” Whether Brock was lying then or is lying now, the point is that there would now be wall-to-wall media coverage of the issue again. Why would a rational Bush administration do this, when, if James Taranto is right, Republicans get a “free pass” on a Rehnquist replacement?
(2) Justice Thomas is much younger than Justice Scalia. The risks to Democrats of a chief lasting that much longer are greater, and therefore it is worth fighting harder against Thomas.
If Democrats choose to oppose a Thomas nomination, they would be smart to attack Justice Thomas’s ideology, not his competence (as the incoming Senate minority leader recently did). I agree with Jack Balkin’s post arguing that “I have no reason to think that Thomas is appreciably better or worse in terms of his lawyerly skills than many other Justices who have sat on the Supreme Court.” The issue is one of ideology.
UPDATE: Larry Solum responds here. I think Larry underestimates the media sensationalism that would come with a renewed look at the Thomas-Hill controversy. In 1991, when Justice Thomas was confirmed, there were many fewer cable news stations, no legal oriented cable television shows (such as “The Abrams Report” and “On the Record”), virtually no internet (and no blogosphere). The revelations would hardly be old news for a public that likely forgot what happened at the hearings back in 1991. Think of the countless hours spent on O.J., Kobe, Scott Peterson, etc. and you would have an idea what I envision.