The Founding Fathers got little wrong. With the conspicuous exception of ducking the slavery issue, which would inextricably lead to the Civil War, they constructed a Constitution with extraordinary foresight. But given the troubling case of Clarence Thomas, lifetime tenure for Supreme Court justices isn't looking like such a hot idea these days.
In granting lifetime tenure, the Founders believed that it would be more difficult for outside parties to influence the high court, but they failed to take into account that life expectancies would grow by leaps and bounds. Indeed, the average tenure of a justice was under 15 years from the founding of the republic until 1970 and since then is over 26 years.
Justice Thomas was 43 years old when he was nominated to the court, meaning that he could hypothetically serve or 30 or 40 years before stepping down. That is an awful thought.
Thomas once was fond of saying that affirmative action marked him as an inferior man, and it turns out that he is. He has not written a significant opinion in his 20 years on the court and has not uttered a word during oral arguments in five years.
Add to that an unapologetic judicial activism that he shares with Justice Scalia, as well as the deep ethical hole that he has dug in failing to disclose his conservative activist wife's income for the last 20 years and speechifying before conservative political advocacy groups that will result in him having a whopping conflict of interest when the court is eventually asked to rule on the Obama health-care reform law since the groups are against it and he certainly will be, as well.
Mind you that Thomas and Scalia are not the first activist justices.
William Douglas, a flaming liberal who with a tenure of 36 years was the longest-serving justice, frequently overstepped bounds, but Thomas and his wife, Virginia, are setting new standards insofar as the wealth of the Thomas household is now directly related to his decision-making on the court such as when he ruled for Citizens United in a disgraceful freedom-of-speech decision. The group has close ties to groups that Mrs. Thomas has and still works for in paid and not voluntary positions. She also has declared herself an "ambassador" for the Tea Party, which also is working to overturn the health-care reform law.
It is fair to say that Clarence Thomas isn't going anywhere soon and won't recuse himself when the court hears the health-care reform case. But neither will he have anything to say during oral arguments.
He responded to his critics last weekend in a manner that can only be described as scary.Thomas told a conservative group that he and his wife "believe in the same things"” and "“are focused on defending liberty," while his critics are bent on undermining the ability of Americans to defend their liberties.That sound you hear is the Founding Fathers kicking themselves in the butt.