Clarence Thomas’s 1991 Senate confirmation hearing was one of the most shameful political events of recent American political life. In the wake of Barack Obama’s risible attack on Justice Thomas at Saturday night’s Rick Warren forum, and the continuing buzz about Delaware Democratic Senator Joe Biden’s potential selection as Obama’s running mate, it’s worth rewinding to 1991.
I’ll let Clarence Thomas tell the story, via his powerful memoir, My Grandfather’s Son:
Senator Biden was the first questioner. Instead of the softball questions he’d promised to ask, he threw a beanball straight at my head, quoting from a speech that I’d given four years earlier at the Pacific Legal Foundation and challenging me to defend what I’d said: “ ‘I find attractive the arguments of scholars such as Stephen Macedo, who defend an activist Supreme Court that would . . . strike down laws restricting property right.’ ” That caught me off guard, and I had no recollection of making so atypical a statement, which shook me up even more. “Now, it would seem to me what you were talking about,” Senator Biden went on to say, “is you find attractive the fact that they are activists and they would like to strike down existing laws that impact on restricting the use of property rights, because you know, that is what they write about.”
Since I didn’t remember making the statement in the first place, I didn’t know how to respond to it. All I could say in reply was that “it has been quite some time since I have read Professor Macedo. . . . But I don’t believe that in my writings I have indicated that we should have an activist Supreme Court or that we should have any form of activism on the Supreme Court.” It was, I knew, a weak answer. Fortunately, though, the young lawyers who had helped prepare me for the hearings had loaded all of my speeches into a computer, and at the first break in the proceedings they looked this one up. The senator, they found, had wrenched my words out of context. I looked at the text of my speech and saw that the passage he’d read out loud had been immediately followed by two other sentences: “But the libertarian argument overlooks the place of the Supreme Court in a scheme of separation of powers. One does not strengthen self-government and the rule of law by having the non-democratic branch of the government make policy.” The point I’d been making was the opposite of the one that Senator Biden claimed I had made.
Throughout my life I’ve often found truth embedded in the lyrics of my favorite records. At Yale, for example, I’d listened often to “Smiling Faces Sometimes,” a song by the Undisputed Truth that warns of the dangers of trusting the hypocrites who “pretend to be your friend” while secretly planning to do you wrong. Now I knew I’d met one of them: Senator Biden’s smooth, insincere promises that he would treat me fairly were nothing but talk. Instead of relaxing, I’d have to keep my guard up.
Later in My Grandfather’s Son, Justice Thomas relays:
Ken Duberstein, a Washington lobbyist who had volunteered to help steer me through the confirmation process, called the next morning to say that Joe Biden wanted to talk to me before the vote. I called the Judiciary Committee cloakroom, and after a brief wait, Senator Biden came on the line. I held the receiver sideways so that Virginia could hear him speak as we stood together in the kitchen. The senator said that he was torn over his decision and had actually brought two statements with him to the committee meeting that day, one for me and the other against. He had decided to oppose me. He’d voted to confirm Justice Scalia, he explained, and now regretted it; he thought it was possible that I might turn out like Justice Scalia, so he couldn’t vote for me.
“That’s fine,” I said. “It doesn’t matter to me whether I’m confirmed or not. But I entered this process with a good name, and I want to have it at the end.”
“Judge, I know you don’t believe me,” he replied, “but if any of these last two matters come up, I will be your biggest defender.” (The other matter to which he was referring was the leak of my draft opinion.)
He was right about one thing: I didn’t believe him.
Do “Smooth, insincere promises” fit alongside Obama’s “change you can believe in”?
– Kathryn Jean Lopez is editor of National Review Online.