Judge Thomas Is Locked in to Laissez Faire

AS Judge Clarence Thomas's confirmation hearings proceed, some senators will object to scrutiny of his beliefs. After all, they will say, this is a judge. His job is to apply the law, not make it. The Senate should be concerned with his competence, not his empathy for the powerless or his view of the world.There is an answer to this objection. Ironically, it comes from another controversial conservative nominee to the Supreme Court, Judge Robert Bork. "It is naive to suppose that the [Supreme] Court's present ills could be cured by appointing justices determined to give the Constitution 'its true meaning,' to work at 'finding the law' instead of reforming society. The possibility implied by these comforting phrases does not exist.... The question ... is not whether courts should make the law, but how and f rom what materials." Judge Bork wrote these words in 1968. Then, it seemed obvious to him that the vagaries of language and history made it impossible for a judge simply to "apply" the law. Things are clearer to him now. He says he has no difficulty in "finding" the law. I think he was right in 1968 and that his words have some profound implications for Judge Thomas. All judges have an ideology, a set of values and criteria that they use to "illuminate" the meaning of the law. For some, the intent of the framers is what counts; for others it is economic efficiency. Some judges think the words of the law alone will decide the case; others think that you must look to its purpose, or to some general set of principles underlying our social order. This issue cuts across party lines. Conservatives habitually browbeat liberals with charges of "judicial legislation," but the y, too, cannot agree among themselves on the right way to interpret the law. (Judge Bork, for example, has at one time or another believed each of the above views to be "undeniably" correct.) Judge Thomas apparently favors natural-law philosophy and laissez faire political theory as his guides to the meaning of the law. Should this disqualify him from confirmation? Not at all. But if all judges have an ideology, then the Senate should reconsider the questions it wants to ask. One important question is whether this particular judge would ever modify his creed because of compassion or contrary evidence, or whether it shapes his perceptions so strongly that contrary evidence will be explained away, compassion preempted. How is this question to be answered about Judge Thomas? In comments that have often been quoted since his nomination to the Supreme Court, Judge Thomas once portrayed his sister, Emma Mae Martin, as welfare-dependent, trapped in a cycle of weakness and reliance on the government. This is the picture that his laissez faire philosophy tells him "must" be there. But as Joel Handler pointed out in a letter to the New York Times, the reality is entirely different. IN fact, Ms. Martin's story is that of a woman who, unlike her brother, was not sent to live with their businessman grandfather. Instead, she finished high school, married, had children, and worked hard to support her family at a variety of grueling minimum-wage jobs, a task made all the more difficult after her husband left her. She went on welfare for a time only to take care of a sick relative. Ms. Martin is now working as a cook. Of her three children, one is employed, one has been laid off, and the third is in school. Professor Handler concludes that this story is not one of welfare dependency, but of courage in the face of racism, structural poverty, sexism, and lousy health care - all problems to which Judge Thomas seems remarkably indifferent. The nicest thing one could say about these comments is that Judge Thomas's philosophy is so ingrained that he insists on it even when it is contradicted by the facts, even when Horatio Alger could not have overcome the structural barriers involved. Even when it is his own sister. Can we doubt he would do the same thing as a Supreme Court justice when the people whose lives depended on his decisions were strangers? Twenty years ago, Robert Bork told us that the question was not whether judges would have to make law, but how. The greatest judges have made law with reverence, with an understanding for the powerless that illuminates the legal materials. They have had a skepticism about power - all forms of power, whether governmental or corporate or entrenched in a community. They have had a respect for unruly facts and a willingness to doubt. Thurgood Marshall was such a justice. The record indicates that Mr. Thomas is not. The confirmation hearings should ask whether he falls below not only the standard of greatness, but the standard of the acceptable.