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October 8 1991, Senate floor remarks by Senator John Kerry, s.14524ff.
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Incidentally, I did not even decide what I was going to do with respect to Judge Thomas until this weekend. I did that purposefully, because I wanted to read the record. I wanted to examine exactly what my colleagues on the committee had said about it. It is only after looking at that that I came to the conclusion I was going to vote against it--not for this reason, but for a lot of other reasons. And that is a separate speech, I suppose. I had originally come to the floor intending to make that right now.
But what bothers me the most about this nomination is the fact that I genuinely do not know where Judge Thomas stands on a host of fundamental issues--not abortion, but a host of issues of jurisprudence--let alone whether he represents a potentially poor, fair, good, or great Supreme Court Justice. I cannot reach that judgment. I simply cannot reach that judgment, because Judge Thomas has chosen a path that was purposefully designed to deny us essential information that is necessary to make that judgment.
Many of us have remarked in the past on how frustrating the hearing process is today. It is simply impossible to get a sense of who people are, what they really feel about the responsibilities of the position.
I will tell you something. All of us who have had the job interviews cannot imagine hiring somebody who would have answered questions the way Judge Thomas did in those hearings. If all somebody said in response to questions when they walked into our office for a job was, "Well, I do not, I do not recall, I have no idea, I do not have a thought about that," anybody who said that to us in an interview would have been offered the door as fast as one could find it.
But, increasingly, that is all we get from people who come before us for the Supreme Court of the United States. In area after area of the law, Judge Thomas chose not to answer questions from Senators on the Judiciary Committee with responses that were almost devoid of content or meaning. In an obvious attempt to avoid controversy, he took the position that he could not comment on any issue that might come before the Supreme Court as a case during his tenure. But then he extrapolated and used that as a rationale for not even answering questions about how he felt about cases that are settled law, on matters where stare decisis has set in long ago.
It seems to me that we should not ratify, as Senators, an advice and consent process that submits itself to that kind of simplicity or avoidance. The judge suggested that it is important for judges not to have agendas, not to have strong ideology or ideological views, describing them as baggage that a nominee should not take to the Supreme Court.
But the trouble is dozens of previous statements by the judge on a host of critical issues provide exactly the very kind of baggage that he suggested you should not have, and regrettably his approach to the confirmation hearings left him saying practically nothing that would permit us to understand whether or not that baggage had truly been left behind.
Instead, Senators were answered by Judge Thomas with nonresponses. Let me just give a few. Abortion, obviously, is the famous one, and I do not expect him to tell me what he is going to do on Roe versus Wade; I understand that. But it seems to me there are some fundamentals beyond that which might have been discussed in terms of past cases.
On questions about meetings, positions, and discussions on South Africa and apartheid, Judge Thomas said, "I have no recollection. I simply don't remember."
On a question regarding his past statements that Congress was a coalition of elites which failed to be a deliberative body that legislates for the common good of the public interest, he said, "I can't, Senator, remember the total context of that, but I think I said that and I think I said it in the context of saying that Congress was at its best when it was legislating on great moral issues. Now, I could be wrong."
On a question about the right of privacy and the 14th amendment, Judge Thomas said, "My answer to you is I cannot sit here and decide that. I don't know."
On a question as to whether English-only policies might constitute discrimination, Judge Thomas said, "I don't know the answer to that."
On interpreting antidiscrimination statutes, Judge Thomas said, "Let me answer in this way, Senator, without being evasive. I know that there is pending legislation before this body in that area, and I don't think I should get involved in that debate."
On whether the Korean conflict was in fact a war, Judge Thomas said, "The short answer to that is, from my standpoint, I don't know."
On a recent dissent of Judge Marshall in which Judge Marshall said that Power, not reason, is the new currency of this Court's decisionmaking, Judge Thomas said, "I would refrain from agreeing or disagreeing with that."
He certainly found a lot of ways to say "I do not know" or "I disagree" or "I cannot agree" or "I can't say whether I agree."
The result of these and similar answers to a wide range of questions over 5 days of hearings is that I would like to refrain from agreeing or disagreeing to confirm Clarence Thomas to the Supreme Court, but I am not permitted to do that. I have to make a decision and to vote.
And Judge Thomas has not permitted me to judge his opinions, or what kind of Justice he will really be. I can only judge his performance before the Judiciary Committee and that which he has said previously.
I would like to quote the Chair, Senator Leahy, who I think stated well the dilemma that has been placed before us. Senator Leahy said, "As I said when the hearing began, no nominee should be asked to discuss cases pending before the Court. Neither should a nominee feel free to avoid questions about established constitutional doctrine on the ground that a case on that subject eventually will come before the Court. No one could compel Judge Thomas to answer questions. The decisions not to tell us how he thinks * * * was his and his alone. In choosing now to share his vision of the Constitution, Judge Thomas failed to provide what I need as a Senator for informed consent."
I concur with the Senator from Vermont.
I would turn also to a statement made by the distinguished Senator from Alabama, Judge Heflin, a conservative who voted for Chief Justice Rehnquist and Justices O'Connor, Scalia, Kenney, and Souter. After listening to the testimony and trying in vain to obtain from Judge Thomas a further explanation of his positions, Judge Heflin said, "I came a way from the hearings with a feeling that no one knows what the real Clarence Thomas is like or what role he would play in the Supreme Court, if confirmed."
The Senate Judiciary Committee hearings have revealed to me many inconsistencies and contradictions between his previous speeches and published writings and the testimony he gave before the committee. * * * Our Nation deserves the best on the highest court in the land and an error in judgment could have long-lasting consequence to the American people. The doubts are many. The Court is too important. I must follow my conscience and the admonition: "When in doubt, don't."
Mr. President, this body is in deep doubt concerning this nomination. I regret there will be a rush to confirm, but I regret even more that I do not have sufficient confidence in the kind of Justice that Judge Thomas would be. I regret that because I really came to this process wanting to vote for him, hoping I could vote for him, looking for a way to vote for him, and held in silence my comments until the end.
But I will vote against confirming him not on the basis of any of his past statements expressing hostility to reproductive rights or antidiscrimination statutes or minimum wage or congressional oversight. I will vote against him because his unwillingness to answer basic questions has fundamentally stymied the ability of the U.S. Senate to properly give advice and consent.
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