Law Profs Are Split: Is he a Souter or a Bork?

As Clarence Thomas testified before the Senate this week, Harvard Law School professors watched carefully to see if the controversial top court appointee would take a position on, among other issues, natural law and the right of a woman to have an abortion.

If the past few Supreme Court hearings are any indication, many professors say, nominees who say too much are nixed, and those who don't say much of anything are appointed.

Still, Thomas's nomination is as volatile as any, reflected in the fact that many Law School professors refuse to air their opinions publicly.

Those who will talk, though, represent the entire spectrum of political thought, calling Thomas everything from perfectly competent to completely unqualified for the position.

"It seems to me he has not shown the kind of experience, insight, or ability that the position requires," says Pound Professor of Law James Vorenberg, who is also former dean. Vorenberg says that a qualified candidate must have had experience dealing with tough issues such as civil rights, civil liberties, race issues and abortion.

"I don't think he has much of a showing on this," he says.

Richard D. Parker, professor of law, disagrees.

"I think he's qualified," Parker says. "I don't have any doubt that he's right in there with a lot of respected Supreme Court justices."

Parker says that Thomas's behavior in the confirmation hearings was completely predictable, given the past misfortunes of those justice-could-have-beens who spoke too much.

"What's depressing is the obviousness with which someone nominated has to prevaricate and sand off any rough edges," Parker says.

Parker voices an opinion expressed by many other professors, that Supreme Court nominees simply should not voice their opinions before they are appointed.

"No one goes up and shoots themself in the foot," says Professor of Law Charles R. Nesson. Nesson says that it is "the way of the Supreme Court" that justices do not define their views and take a firm stance until after they are confirmed.

"It's conformism," says Parker. Parker cites Justice Rehnquist's appointment as the "first time I remember liberals saying that only people with mainstream views should be on the bench. It's not good in the long run."

Parker says that skirting the issues is not a new technique, citing Souter as the perfect example.

"If I were in the senate and I voted for Souter, I would have trouble voting against Thomas," he says.

Are You Experienced?

While many politicians say the hearings are about qualifications and competence, not politics, the question of what defines "qualification" for the Supreme Court is as vague as Thomas's stand on abortion.

"I have no doubts that he's a competent lawyer," says Professor of Law William W. Fisher. "But the Supreme Court calls for more than this."

Fisher says that if he were a senator he would not vote for Thomas, but that he understands why Thomas has tried to escape from his previous convictions on issues such as abortion. He says it is natural for Supreme Court candidates to avoid committing to political positions before being confirmed.

Rejected nominee Robert Bork, Fisher says, could neither alter nor hide his ideals because of an extensive paper trail. Souter successfully dodged most controversy because he did not have a history of scholarship or rulings on substantive issues. Thomas, he says, is caught some-where in the middle.

"Thomas has a little more difficulty because he has taken substantive positions in the past," Fisher says of Thomas's years as head of the Equal Employment Opportunity Commission. "He has a record nowhere near that of Bork, but it is enough to make him seem more evasive."

He's No Thurgood

Although professors are usually able to analyze Supreme Court nominees in terms of their past decisions and writings, Thomas's race complicates the issue greatly. If confirmed, Thomas will be only the second Black person to sit on the high court, following in the steps of retiring Associate Justice Thurgood Marshall.

"Thomas's minority status is clearly the reason he was picked," Nesson says. "I think Bush wanted someone minority and conservative. Thomas fit that. The whole rhetoric that Thomas's minority status didn't play in is ridiculous."

Fisher says, though, that Thomas is hardly a worthy successor Marshall. In fact, Fisher says that he feels Thomas would decrease the Court's diversity--political diversity, that is.

"One of the strengths of the Supreme Court," he says, "has come from the diversity of its justices--preserving some range of views. Thomas will reduce that diversity."

Fisher says that while he feels racial diversity is important, he is troubled by Bush's refusal to acknowledge that it had anything to do with Thomas's selection.

"Race isn't enough," Fisher says. "We need to look at qualifications. In this case I think that was overlooked."

Vorenberg expresses similar concerns.

"It's highly desirable that a minority be taken to fill the position," he says. "I just don't think he's the best. I'm worried from positions he has held in the past that he has not shown sensitivity, especially in minority cases."

All in all, the question still remains: If the professors were senators, would they vote for Thomas? Some say they would, some say they wouldn't, and some are afraid the alternatives wouldn't be much better.

"It's not so obvious that the defeat of Thomas would generate a better candidate," Fisher says