President George H.W. Bush nominated Clarence Thomas, U.S. Appeals Court Judge, to the Supreme Court in 1991. Democratic Sen. Patrick Leahy (Vt) and Republican Sen. Chuck Grassley (Iowa) both served on the Senate Judiciary Committee.
They still work there today.
Leahy is 82 and is not running for reelection. Grassley will be 89 next year.
How Leahy and Grassley handled Thomas’ confirmation process will help define their legacies.
Grassley tried to determine if Thomas would legislate directly from the bench or if he would seek to apply the law in the manner intended by the legislature that enacted.
“In my first question, I hope that you will reaffirm what you said along this line in your confirmation hearings for the Court of Appeals of the D.C. Circuit,” said Grassley.
“You said, ‘The ultimate goal should always be to apply the will of Congress, the will of the legislature, I don’t think it is ever appropriate for a judge to replace the intent of the legislature with his or her own intent.’
“Is that something you can reaffirm today, after being on the circuit court of appeals?” Grassley asked.
“Senator,” Thomas responded, “when I spoke those words in my confirmation hearing for the court of appeals, of course, I had not been a judge. Now, I can reaffirm those words because of the experience of being a judge and having to judge in some very difficult cases.
“I do not believe that there is room in opinions in our work of judging for the personal predilections, the personal opinions and views of judges,” Thomas continued.
“I think in the statutory construction, the ultimate goal for us is to determine the will of the legislature, the intent of the legislature, not what we would have replaced the legislative enactment with, if we were in the legislature, and we have no role in legislating,” said Thomas.
Leahy had warned Thomas in his own opening statement that he wanted information about how Thomas would legislate from the bench regarding the issue of abortion.
“Let me make this very clear, Judge Thomas,” said Leahy. “In recent years, we have danced around the question of where nominees stand on a women’s fundamental right to choose an abortion. This is one the most important social issues of our times. It is the single issue about which this committee and the American people most urgently wish to know the nominees’ views. And yet the Senate and the Nation have been frustrated by polite—albeit respectful—stonewalling.”
When it was Leahy’s turn to question Thomas, he tried to force the judge into taking a position on the constitutionality of Roe v. Wade and abortion.
He failed.
Referring specifically to Roe, Leahy asked Thomas: “Well, was it properly decided or not?”
“Senator, I think that that is where I just have to say what I have said before; that to comment on the holding in that case would compromise my ability to—.”
Leahy interrupted. “Let me ask you this: Have you made any decision in your own mind whether you feel Roe v. Wade was properly decided or not, without stating what that decision is?”
“I have not made, Senator, a decision one way or the other with respect to that important decision,” said Thomas.
Thomas was finally confirmed with a 52 to 48 vote. Leahy was one of the 48 who voted against. Grassley voted no.
15 years later, the Senate voted 58-42 to confirm Justice Samuel Alito. Leahy was once again among the no votes, while Grassley was one of the yes votes. Leahy voted once again no eleven years later when the Senate voted 55 to 45 to confirm Justice Neil Gorsuch.
The Senate voted 50-48 to confirm Justice Brett Kavanaugh in 2018, 52-48 to confirm Justice Amy Coney Barrett for 2020. This was the same pattern.
This May, a draft opinion in Dobbs v. Jackson Women’s Health Organization was leaked before the Supreme Court was ready to release it. It looked at a Mississippi law that prohibited abortion after 15 week. The court ruled in favor of Roe and returned the matter to the states.
Leahy, it would turn out when the final opinion was released, had opposed all five justices who voted to overturn Roe—Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.
On May 11, the Women’s Health Protection Act was brought up on the Senate floor. It would have allowed abortion to be legalized nationwide. To end the debate and hold a final election, 60 votes were required.
Leahy voted for Cloture, as it was obvious. Only 48 senators voted for him. Grassley was not among them.
Leahy spoke on the floor and expressed his disgust at the Senate’s inaction regarding the killing of unborn babies.
“I am the dean of the Senate,” declared Leahy. “I am the longest serving Member of this body today.”
While noting that Vermont would keep abortion legal, he declared: “The unfortunate reality is that 26 other States stand ready to ban abortion rights in the absence of Roe. What are the women of these States to do?”
He then—perhaps accidentally—seemed to refer to the unborn human beings that pregnant woman “bear” as “children.”
“And what laws are these States prepared to pass—what resources are they prepared to provide—to support these women and the children they will bear?” Leahy asked.
“Shame on this Senate today,” he said.
No. Leahy is the one to be shamed.
He will be remembered in history for his efforts to legalize the killing of innocent unborn children.
COPYRIGHT 2022 TERENCE JEFFREY
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