An Uncomfortable Seat

Don't be surprised if Clarence Thomas wakes up with the flu on Dec. 11. On that Wednesday, the U.S. Supreme Court will hear a case on sexual harassment so it's a good bet the newest justice would rather stay home and tend tulips. Nonetheless, Thomas will likely take his place on the far right side of the bench, even if he lets his more experienced--and less tarnished--brethren do the questioning. If he does pipe up, expect his every utterance to be parsed by pundits, his every twitch captured by courtroom sketch artists. Anita Hill's allegations that Thomas sexually harassed her in the early 1980s didn't cost Thomas his seat on the high court, but that seat will be very uncomfortable. So much so that, for now, his credibility-and that of the court-are damaged. Nothing, Thomas himself said, could ever "give me my good name back."

Thomas doesn't officially take over until this week, yet his troubles already have disturbed the quiet work of the court. The electronic images of Thomas and Hill blared in offices throughout the building as secretaries, law clerks and the justices themselves tuned in the Senate mudfest. NEWSWEEK has learned that two conservative justices who watched the hearings told their clerks that they thought Thomas lied to the Judiciary Committee.

That doesn't bode well for a smooth transition into an institution that demands collegiality. Senators can get away with treating each other like Jimmy Connors handles linesmen. The president loses little by berating Congress: a pox on both your houses. But personal relations on the court are vital. At regular Friday conferences, justices sit around a table for hours, without aides, to resolve cases. "Nine scorpions in a bottle," Oliver Wendell Holmes Jr. once called them. The environment can breed odd relationships: Chief Justice William Rehnquist, a conservative, and retired Justice Thurgood Marshall, a liberal, are close friends.

The legal community has its own doubts about Thomas's ability to render neutral justice. This is the man who said "an assassin's bullet" would have been preferable to the advice-and-consent ordeal he was put through. How can Thomas be dispassionate after he raged against liberal interest groups, Democratic senators and television cameras? What does he think of the First Amendment? Thomas must feel he needed a free press the way Gorbachev needed a Crimean vacation. On cases involving harassment, pornography and congressional power, will Thomas seek revenger will he strive too hard to avoid the appearance of conflict by ruling the other way? "I don't think he can be impartial," says Bruce Fein, a conservative legal commentator who supported Thomas earlier in the summer.

Litigants who question Thomas's impartiality will have little recourse. It will largely be up to the justice to decide if he should disqualify himself from certain cases. The threshold is high; some perceived proclivity against a large group-say, women or a liberal organization-isn't enough. A noted instance of recusal occurred in 1988, when Rehnquist removed himself from a case argued by Jim Brosnahan, a San Francisco lawyer. At Rehnquist's 1986 confirmation hearings, Brosnahan had testified that he observed Rehnquist, 24 years earlier as a poll watcher, intimidating minority voters.

Thomas can take comfort from the careers of other justices who were scandalized. The weirdest tale comes from 1888-89. Justice Stephen Field was arrested for the murder of David Terry, a lawyer. Field had long hated Terry, in part because he killed one of Field's friends in a duel. Now, in an estate dispute, Terry was representing his own wife, previously the mistress of an elderly millionaire. Field, riding circuit in California, ruled against the woman and also held Terry in contempt. Terry threatened Field, and the justice was warned to stay out of the state. Field went back anyway. Terry found him on a train and assaulted him. Field's marshal shot Terry dead. The marshal stood trial, while charges against Field were dropped. The clash captivated the nation. "Money, sex, Southern chivalry, pioneer coarseness, pride, malice, and stern devotion to principle were all mixed in the brew," wrote Field's biographer. "It was a nasty situation in which the judicial ermine was not likely to remain unstained." Even so, Field is regarded as one of the era's finer jurists.

Half a century later, Alabama Sen. Hugo Black, a New Dealer, hit a roadblock on his way to the court. Soon after his confirmation in 1937, a Pittsburgh Post-Gazette series detailed Black's former membership in the Ku Klux Klan. At the time, Black was traveling in Paris and avoided comment. The squall failed to pass, and Black was forced to deliver an 11-minute radio address renouncing the Klan. A huge national audience listened in, second only to that hearing Edward VIII's abdication. Three days later, Black donned the black robes. Over the next 34 years he became a great liberal champion of the Constitution.

Abe Fortas, a Lyndon Johnson crony, wasn't so lucky. He was named a justice in 1965, then nominated for chief in 1968. Republicans stalled, sensing victor in the fall election. The pretense was ethics: Fortas had received a $15,000 honorarium from American University. He eventually withdrew. Seven months later Life magazine reported that Fortas had accepted 20 000 in 1966 from the family foundation of an industrialist eventually jailed for stock fraud. Fortas quit the court altogether, the first time a justice left the bench for misconduct.

Thomas's problems are most akin to Black's. Still, Black acknowledged his mistake and was able to move on-even if the Klan entry never completely left his biographical rap sheet. Thomas, however, denies being a lech and a liar. Unless someone unearths facts that prove Thomas guilty of perjury-and the press and Thomas's critics will continue digging-there will always be doubt about the allegation. Should Thomas be penalized for that? If he's a victim, of course not. The trouble is, more is at stake than his standing. What of the tribunal itself?

The Supreme Court commands neither purse nor sword. It is the bystander branch of the federal government, deriving authority simply from the mystic trust of the people that it rules by reason and a law higher than political calculation. How else can the court work its will on such issues as flag-burning and school prayer, where the political branches so clearly believe judge-made constitutional law is flat wrong?

For the worst reasons, Thomas is now the best-known member of the court. If, through the wisdom of his judging, Thomas rises above the moral cloud, the din of recent events will fade from memory. If not, the Supreme Court stands to lose the public faith that ultimately grants it legitimacy.