HIGH COURT NOMINEE THOMAS WILL SHPAE HIS OWN HISTORY

Clarence Thomas will soon be the 106th justice of the United States Supreme Court. During the next 40 years, we will learn what the confirmation process could not reveal: whether Thomas is the doctrinaire disciple of the far right as his writings and speeches would indicate, or the somewhat more compassionate, flexible person he appeared to be at his confirmation hearing.

Time also will be the test of the judicial greatness of Clarence Thomas. President Bush claimed that Thomas was "the best person ... best qualified ... best man," but no one took the President very seriously. Even the president's dog Millie must have scampered off barking with shame when she heard that one.

We like to believe that only the best and the brightest go to our nation's highest court. History repeatedly teaches otherwise. Only one President (Herbert Hoover) ever appointed a justice (Benjamin Cardozo) solely because he was considered by everyone to be the finest legal mind in the nation.

The judicial Mt. Rushmore contains the four titans: John Marhsall, Oliver Wendell Holmes, Louis Brandeis, and Cardozo.

Perhaps another 10 can fit into the near-great category: very talented jurists, but something short of Mt. Rushmore.

After them comes the vast expanse of mediocre talent. Most were earnest, decent workers at their trade. In this group were men of pedestrian legal skills who cranked out pedestrian opinions suitable less for history and more for a one-time, cursory reading. Just as the history of the Congress and the Presidency is replete with infrequent bursts of greatness interspersed between long periods of vacuity, so too the Supreme Court. Speaking of vacuity in Congress, Senator Roman Hruska (R-Neb.), made the great gaffe of proudly preordaining failed nominee Harrold Carswell as certifiably mediocre: "Most of the American people are mediocre. They need representation too." God forbid. We get enough of it by chance without eagerly recruiting for it.

After the mediocre majority ~comes the ungreat dreadful. Here are the "Dreadful Four" on everyone's worst justice list:

Gabrelle Duvall (1810-1835). A court historian claims he wrote only three words in his entire career ("Duvall, justice, dissents"). He liked to leak court opinions in advance. John McKinley (1838-1852), who spent most of his court tenure tending to the family hemp business in Louisville. He had an enfeebling stroke in 1842, but stumbled around for 10 more years. James C. McReynolds (1916-1939), the most venomous man ever to serve on the court. He hated smoking, lawyers, women and Jews especially Jews. When Cardozo, a Jew, was sworn in, McReynolds ostentatiously read a newspaper. Pierce Butler (1923-1939), counsel to the railroad interests of James J. Hill. He felt the Court should defer to his views on railroad matters and he would defer on all the rest.

Clarence Thomas has it within himself to shape history and history's view of him. As Senator Joseph Biden put it at the conclusion of his testimony "You're going to be the judge who ... has nothing to bind you but your conscience."