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Politics Waters Down The Supreme Court

LIKE millions of other Americans, I was glued to my TV set during the Thomas-Hill inquiry. Here are a few of the thoughts that ran through my mind as I watched, hour after hour.First and foremost, why didn't the president pick someone who, as he said, was clearly the "best" of those available? Clarence Thomas showed himself to be a bright and able man. And he may turn out to be an excellent associate justice. But for such a high judicial position, why should the president choose - and the American people have to accept - someone with relatively little experience on the bench or in practicing or teaching the law? It was, of course, a political choice and a clever one. By selecting a black, Mr. Bush hoped to pull a number of Democratic senators to his side, primarily those in the deep South who have a large number of blacks among their constituents. The final tally showed he was right. What caused the president to put more emphasis on picking someone who could be confirmed than on selecting the best and brightest available? The Democrats are responsible for that. When they turned back Robert Bork, a man of unquestionable intellect and knowledge of the law, they sent a message: No one who doesn't agree with our social agenda is going to make it. Associate Justices Anthony Kennedy and David Souter made it through the confirmation ordeal simply by disclosing little of their thinking on crucial social issues. Souter's anonymity became his biggest asset. Blandness brought them success. These men, too, might become outstanding justices. But is this the way to select people for our Supreme Court? Is this the manner in which we pick a Brandeis, Stone, or Holmes of the future? Bork might have had that potential. This leads to the next question: What was at issue in the grilling of Clarence Thomas and Anita Hill? Was the allegation of sexual harassment really at the center of this Shakespearean theater? No. At base was the resistance, in and out of Congress, to a conservative getting on the court - someone whose presence might turn back the clock on what many Americans believe is social justice and social progress. That explains the leak to the press - a last-minute, desperate effort to derail Thomas with this allegation of frightful, disgusting behavior. The leak triggered the open hearings and forced an apparently reluctant Professor Hill to make her charges publicly. Her charges became quite specific - and damning if true. She had a straightforward, unflappable manner that made her highly credible. Yet Judge Thomas, eloquent and passionate, became an even more credible witness to about twice as many Americans as believed Hill. Who won then? Only two people actually witnessed this happening or non-happening of a decade ago. So it really ends up as it began - her word against his. The public was asking the right question (and the vast TV audience was the real jury): "Whom do you believe?" That went to the heart of it. This sexual harassment allegation would have been thrown out of a court of law because of exceeding the statute of limitations - which is quite short, no more than six months. These are not arbitrary limitations. They exist in large part because it is reasonable to expect that if such an act occurs, the one abused would lodge her complaint promptly to prevent it from happening again. Also the evidence trail gets cold quickly in such cases. Certainly the hearings did not constitute a court of law. But the reasoning behind the limitations statute deals with fairness toward the defendant. I think such fairness should similarly apply to the hearings. Also, I think this same fairness dictates that the burden of proof is on the accuser. If the accuser has not provided that proof, the accused should be given the benefit of the doubt. Can some good come of all this? Yes. Men will be more sensitive to the needs of women in the workplace. They will be more aware of women's feelings. There should be less hostility and more respect.

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