Howard's point goes to the confirmation process, I think. The Presidential party typically argues that the Congressional party should not ask such specific questions, because it will interfere with judicial independence and precommit judges to vote certain ways. Insofar as its assumptions are true, the point is right. The rejoinder, which I think is correct, is that judges are expressing an opinion and not precommitting, which the Thomas experience demonstrates.
Now, when the issue is such an abstract one, divorced from case facts, and the contradiction is so stark, it seems pretty plausible to suggest that the nominee was dishonest. However, Thomas has an out. As I recall, he consistently insisted that he hadn't thought about these issues deeply. It's perfectly natural for a person to change his or her mind after deep reflection. Assuming that Justice Thomas has engaged in such deep reflection since joining the Supremes. At 12:28 PM 6/26/2003 -0700, you wrote: >I hope Mark's point is not lost in all this. Is there a way to reconcile Thomas at confirmation with Thomas here? What reassurance can conservatives offer those who worry that Thomas was not honest during his hearings? Are there any interesting constitutional implications associated with judicial nominees who say one thing during confirmation hearings and something else once they are on the bench? > >Howard Gillman >USC Political Science > >----- Original Message ----- >From: Mark S Kende <[EMAIL PROTECTED]> >Date: Thursday, June 26, 2003 11:39 am >Subject: Re: Bowers Overruled > >> I'm trying to figure out how to descirbe Thomas' statement in the dissent >> that there is no general right to privacy in the U.S. Constitution or Bill >> of Rights. According to Gerber, First Principles at 58, "Thomas testified >> that there is a right to privacy in the Fourteenth Amendment." Similarly, >> Mayer and Abramsom's book, Strange Justice, says that "Thomas also >> steadfastly refused Biden's invitation to state his position on abortion, >> going only so far as to endorse a constitutionally protected right to >> privacy." (pp. 216-217). Is this an example of an "evolving >> jurisprudence"? Mark >> >> Mark Kende >> Professor of Law >> University of Montana School of Law >> Missoula, Montana 59812 >> 406-243-4317 (phone) >> 406-243-2576 (fax) >> >> >> > Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
