Clarence Thomas for President?

Kashmir Hill and David Lat of Above the Law have an interesting Washington Post column urging Justice Clarence Thomas to run for president. I know Lat because he was a year ahead of me in law school. He’s a very smart guy, and I have great respect for all the success he has achieved as a legal blogger. But I think he and Hill are barking up the wrong tree here.

I see a few positives in a Thomas candidacy. As Hill and Lat point out, Thomas is smart, eloquent, and has significant libertarian leanings. A black Republican presidential nominee might also have great symbolic value, even despite (or perhaps because of) Obama’s historic breakthrough.

Nonetheless, there are very strong arguments against a Thomas run that easily outweigh the positives. First, it would surely reopen the whole issue of Anita Hill’s sexual harassment charges. Whether you think that Hill was telling the truth or not, there is no doubt that the press and public opinion would focus on this issue. It would quickly become an immense distraction, and greatly reduce Thomas’ chances of winning.

On this point, Hill and Lat say only that Thomas “has already survived the nasty political attacks that marked his 1991 confirmation hearings.” He survived them in the sense that he (just barely) got confirmed. But the charges continue to dog Thomas to this day, and a presidential campaign would surely reopen this can of worms. It would have an immensely polarizing effect, and make it more difficult for Thomas to appeal to constituencies that aren’t already predisposed in his favor. We got a foretaste of what might happen when the Hill issue resurfaced three years ago when Thomas published his memoir. That controversy, of course, was nothing compared to what would happen if Thomas became a serious presidential contender.

The second argument against a Thomas run is even more important: he would have to resign from the Supreme Court and Barack Obama would get to pick his successor. I have been very critical of Thomas’ positions on several issues (e.g. – here). On balance, however, he has been one of the most libertarian and originalist justices, and I would be sorry to lose him.

Right now, the Court has a narrow 5-4 conservative majority. If Obama replaces Thomas with a liberal, the balance would flip. Hill and Lat (who is a conservative himself) try to minimize this risk by arguing that “[t]hus far, Obama has not nominated hard-core liberals to the court; his recent choice of Solicitor General Elena Kagan disappointed many on the left.” I remain unpersuaded. Obama’s first nominee, Sonia Sotomayor, has turned out to be a reliable liberal vote. Given her previous record, this should not have been a surprise; on several key issues, such as property rights, she was actually somewhat further to the left than the rest of the liberal bloc on the Court.

Elena Kagan may turn out to be slightly less liberal than the other potential nominees Obama was considering. Still, she is likely to vote with the liberal bloc on most major issues, and is certainly far more liberal than Thomas. The same is likely to be true of any justice Obama nominates to replace Thomas. That nominee may be a bit less liberal than Sotomayor. But he or she will still support the liberals on most issue and will still be very far from Thomas’ positions. This is especially likely if, as expected, the Democrats retain control of the Senate after the November elections.

Hill and Lat also contend that Thomas could make up for the loss of his seat by appointing conservative justices to replace liberal ones if he wins in 2012. However, the combination of an improving economy and the Anita Hill issue will make it difficult for Thomas to beat Obama that year. If circumstances arise that do make a Thomas victory possible, they would also make a win by a different Republican nominee at least equally feasible. If any Republican other than Thomas wins in 2012, he could both hold Thomas’ seat and replace whatever liberal justices happen to retire during his term.

There are other aspects of Thomas’ record and personality that might impede his candidacy. For example, he does not seem to be a person comfortable with the constant glare of media attention that surrounds a presidential campaign. Quotations from his many forceful Supreme Court opinions would probably provide good fodder for clever attack ads (especially if taken out of context).

In sum, a Thomas presidential candidacy strikes me as a bad idea. The only people likely to benefit are liberals who would welcome the opportunity to replace Thomas with an Obama nominee, and anyone who would enjoy relitigating the Thomas-Hill controversy.

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