A Clarence Thomas non-scandal

Was it scandalous for Justice Clarence Thomas to express his support for Neomi Rao’s nomination to Senators considering whether to vote for her confirmation as a federal appellate judge? Some claim it was.

Elie Mystal says:

I guess we already know how Thomas would rule on any Rao opinions appealed to him. That’s… not how this is supposed to work.

Nonsense. A positive report by a Supreme Court Justice about a potential judicial nominee doesn’t mean the Justice will decide cases the same way as the nominee.

David Axelrod has revealed that Justice Scalia lobbied him to have President Obama nominate Elena Kagan to the Supreme Court. Scalia and Kagan rarely agreed about how the big Supreme Court cases should be decided.

Mystal’s contempt for Thomas renders him unwilling or unable to discern that the uncompromising Justice is going to call them as he sees them, as he has for decades.

At Bench Memos, Jonathan Adler argues, persuasively, that Justice Thomas’ input was a legitimate and valuable part of the vetting process for Rao. Not only did Rao clerk for Thomas, the two also taught law school courses together. Thus, it made perfect sense for Thomas to share with Senators his view of Rao’s fitness as a judge:

The vetting processes done for prospective nominees performed by the White House, the American Bar Association, and various state advisory commissions (such as the advisory commission for Ohio on which I’ve served) routinely involve discussions with sitting judges about former clerks and attorneys who have appeared before them. . . .

It is not scandalous for a judge to provide this sort of input. Indeed, it would be scandalous were such input not solicited as part of the nominee vetting process. Judges are often in a position to offer valuable insight into the temperament, character, and capabilities of prospective nominees, and we should want these perspectives to be considered by those evaluating prospective members of the federal bench, whether in the White House or in the Senate. . . .

So the fact that Justice Thomas may have spoken with senators who had concerns is far from scandalous. It’s part of how we should want the process to work.