Friday, September 03, 2004

Discussing Roe

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 --


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.
Odd that this testimony hasn't been noticed.


Anonymous Anonymous said...

Ah, you see Stuart, Justice Souter's evasions were a sign of his intelligence and sharp mind, while Justice Thomas's evasions were a sign of his stupidity, at least according to conventional wisdom.

Why, it's enough to make one believe in racism.

11:02 AM  
Anonymous Anonymous said...

As I read the excerpt (and that is all I am relying on here), Souter and Thomas did take different approaches, and your characterization of Souter as not having discussed the case and not having had an opinion on it is inaccurate (again, according to a fair reading of the excerpt).

First, Souter makes clear that he did debate the case: "I can remember -- not only I but others whom I knew . . . playing devil's advocate on Roe v. Wade."

Second, he does not say he had no opinion on it. Rather, on response to that question, he insists on "drawing the line" and refuses to answer. He suggests that one reason for refusing to answer is that opinions he held on the case in 1973 might be taken to represent his current opinion, and says he lacks an agenda as to what should be done were a Roe-like case to come before him on the Court.

The first half of this statement could fairly be read to suggest that he held a view on the case in 1973 but refuses to disclose it. I can't say for sure, as he speaks in the subjunctive tense. But it is tough to read this as an outright denial that he held an opinion at the time.

As for the second half of the statement, opponents (or supporters) of his position in Casey might think he was being disingenuous or worse when he said he lacked an agenda on the abortion question. I take no position on that point, as there is no evidence on which to do so apart from his vote. In any event, there is a difference between having an opinion, pro or con, on Roe v. Wade, and having an agenda as a judge on the legal questions surrounding abortion, and it is not a politically freighted one; both supporters and opponents of Roe might nonetheless consider themselves obliged, as judicial nominees and judges, to hold themselves open and do their best to evaluate the case as it comes to them.

In sum, and with respect, I think you err in arguing that Souter's answers correspond to Thomas's answers. There are some clear distinctions between them.

I might add that I don't say this for purposes of leaving the impression that Thomas acted improperly or dishonestly. As with Souter's statement, I have no basis on which to judge its accuracy. It is entirely possible Thomas did not discuss the case at the time; I love constitutional law but I don't discuss every case that comes down with someone else, and certainly didn't in law school. He could have read and thought about it without discussing it. Moreover, it is also possible he did not come to a decision in his mind as to whether it had been properly decided, as he testified was the case. I have some general views on many controversial cases, but I don't have a hardened final view on those cases in every instance, and particularly not immediately upon their issuance. None of these possibilities indicate an incurious or ignorant individual, and I have always thought this criticism of Thomas deeply lacking; moreover, it seems too heavy a burden on a person to conclude that the incuriosity of a young law student or lawyer, if that is what it was, necessarily renders him ignorant or incurious or unqualified some 20 years later.

A third possibility is that he did have a position but didn't want to share it with the committee, and so dissembled. This is the most unsavory possibility, to be sure, though I think his critics rushed toward it too soon. It is not as unsavory as all that; I'm not horribly shocked by white lies of this kind that, like the old saw about hypocrisy, pay tribute to the judicial virtue of impartiality. If it was a dishonest answer, though (which, again, I have no reason to believe it was), I would far prefer Souter's approach: a simple refusal to answer, with the knowledge that the refusal could be held against him. Frankly, I think more judicial nominees ought to be willing to openly refuse to answer questions -- not to hide their views, but to provide some check on the overreaching tendencies of the confirmation process.

7:46 PM  
Anonymous Anonymous said...

One addendum to my comment above: it might be useful to note that the review itself, to which you link, suggests that a supportive biographer of Thomas did suggest that Thomas had misled the committee by denying he had discussed Roe when, according to the biographer, he had. My comments about dissembling apply here: I find the alleged dissembling understandable, if unsavory, but would prefer a staunch refusal to answer a question to a misleading answer. Just to draw the obvious parallel: One who concluded that Thomas lied but that the lie was forgivable in the circumstances might want to reconsider his view as to whether President Clinton ought to have been impeached. (I mean this in a truly general sense; "one" is not a proxy for Mr. Buck, whose views on impeachment are unknown to me.) Conversely, one could conclude that both Clinton and Thomas committed impeachable offenses.

7:54 PM  
Blogger Stuart Buck said...

1. Did Souter discuss Roe? Perhaps I should clarify: His first sentence is "I frankly don't remember the early discussions on it." He then says that he and others played "devil's advocate," "switching back and forth." This is a brilliant answer, if the point was to make it totally impossible to tell which side he "remembers" arguing.

Bottom line: he starts out with the same answer that Thomas gave -- he doesn't remember -- but then he remembers something that is utterly vague (multiple people all switching sides).

2. He did deny having an "opinion" on Roe. Kohl asked him directly, "is it fair to state . . . that you do have an opinion on Roe [v.] Wade?" His answer was, "I think it would be misleading to say that." In other words, he was saying, "it would be misleading to say that I have an opinion on Roe."

9:32 PM  

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