A recent book review by Randall Kennedy of Harvard Law School points out this oft-noticed aspect of Clarence Thomas's nomination hearings:
In replies to questions, Thomas stated that he had never "debated" Roe v. Wade and had come to no decision in his own mind as to whether it had been properly decided. If this response was true, it disclosed a disturbingly isolated jurist who might well have been viewed as too incurious, too indifferent, too ignorant to sit on the nation's highest court. If this response was false, it disclosed a jurist willing to disregard an oath and lie to the Senate.By chance, I recently stumbled across a quotation in a law review article, showing that Souter took a surprisingly similar approach: He didn't remember having discussed Roe at the time (except for the fact that he and other people switched "back and forth"), and he said that it would be "misleading" to say that he currently had any "opinion" of Roe:
SEN. KOHL: Just a couple of questions on Roe [v.] Wade. In 1973 when it was promulgated, you were in the AG's office --Odd that this testimony hasn't been noticed.
JUDGE SOUTER: Yes.
SEN. KOHL: -- and it's hard to go back to what you did that day, or in the days and weeks after, but I am just presuming that there was conversation between you and your colleagues at that time. Do you recall your feelings about Roe v. Wade back when it was promulgated?
JUDGE SOUTER: I frankly don't remember the early discussions on it. I mean, everybody was arguing it. The -- the -- it was probably fought, after more argument among lawyers, than any other case certainly of its time, and the only thing I specifically remember is that I can remember -- not only I but others whom I knew really switching back and forth, playing devil's advocate on Roe v. Wade.
SEN. KOHL: You had no -- you had no opinion about it other than just to say, "Wow"?
JUDGE SOUTER: Oh, I doubtless -- I doubtless had an opinion. No, I didn't just say wow.
SEN. KOHL: What was your opinion in 1973 on Roe [v.] Wade?
JUDGE SOUTER: Well, with respect, Senator, I'm going to ask you to let me draw the line there --
SEN. KOHL: Okay.
JUDGE SOUTER: -- because I don't think I could get into opinions of 1973 without their being taken indications of opinions of 1976.
SEN. KOHL: Okay. With respect to Roe [v.] Wade just once more, is it fair to state even though you're not prepared to discuss it, understandably, that you do have an opinion on Roe [v.] Wade?
JUDGE SOUTER: It -- I think it would be misleading to say that. I have not got any agenda on what should be done with Roe v. Wade if that case were brought before me. I will listen to both sides of that case. I have not made up my mind. And I do not go on the Court saying I must go one way or I must go another way.
Quoted in N.Y. Times, Sept. 15, 1990, at 10, col. 3.