Amid the pomp and pageantry of an inauguration day, one clear signal emerged, and all the new president had to do with it was when he chose his running-mate. And it was chilling.
We know the chief justice swears in the president, and John Roberts performed that duty for the third time. But who swears in the vice-president? Until the 1940s, it was usually the president pro-tempore of the Senate, sometimes the outgoing vice-president, sometimes the chief justice.
The change came in 1949 when Harry Truman’s vice-president, longtime Senator Alben Barkley of Kentucky, chose an old friend from the Bluegrass State: Associate Justice Stanley Reed. Since then, some vice-presidents have taken similar approaches: Richard Nixon turned to Senator William Knowland, a fellow California native; Lyndon Johnson to Sam Rayburn, the longtime House speaker and one of his mentors; and George H.W. Bush to Potter Stewart, an associate justice who was an old family friend and classmate.
Others have gone more for symbolism. Al Gore wanted Thurgood Marshall to swear him in: the justice had retired, but of course he had been a towering figure in the civil rights movement, and Gore’s father had been one of only three southern Democrats in Congress who had refused to sign the Southern Manifesto against the ruling in Brown v. Board of Education, which Marshall had argued before the Supreme Court. But Marshall was seriously ill—he died four days later—and instead the honor fell to Byron White, who was more conservative, but the senior associate justice and a Democrat appointed by John F. Kennedy. Four years later, Gore chose Justice Ruth Bader Ginsburg.
After Dick Cheney chose Chief Justice William Rehnquist and Speaker of the House Dennis Hastert, the symbolism returned with Joe Biden. The first time, it was the senior justice, John Paul Stevens, the leader of the liberal-leaning court bloc. The second time, it was Barack Obama’s first court appointee, Sonia Sotomayor.
And all of that background is why Mike Pence’s choice was so meaningful.
One bit of symbolism is that Thomas became the first African American to swear in a president or vice-president (though, as already noted, not the first to be asked to do so). Perhaps Pence hoped to divert attention from the fact that he supported and is on the ticket with a leader of the racist birther attacks on Obama.
Granted, the justice has something in common with Pence’s boss: numerous accusations of sexual assault, harassment, and inappropriate behavior. But he and Pence also have similar views of women’s and human rights, ranging from opposition to abortion rights to Thomas telling a Federalist Society meeting honoring Justice Antonin Scalia to continue the fight against LGBTQ rights at the state level, and Pence opposing a law banning workplace discrimination against the LGBTQ community because it “wages war on freedom and religion in the workplace.”
But it’s also worth remembering and knowing just how powerful Pence could be. After his selection as running-mate, The New York Times reported that, first, Donald Trump, Jr., had approached Governor John Kasich of Ohio, telling a senior adviser that his boss could the most powerful vice-president in American history. Kasich’s adviser seemed puzzled, and the nominee’s son said that “his father’s vice president would be in charge of domestic and foreign policy. Then what, the adviser asked, would Trump be in charge of? ‘Making America great again’ was the casual reply.”
The younger Trump disputed the report, but his supposedly non-ideological father’s appointees include some of the most right-leaning Cabinet members ever chosen, and the new president has made clear his admiration for Justice Scalia as he seeks to fill the seat that Republicans held hostage. If the new vice president’s are unclear even after choosing a reputed sexual predator whose judicial opinions have repeatedly rejected even the notion of discrimination against African Americans doesn’t make it clear, perhaps this will. Once asked to distinguish his ideology from Thomas’s, Scalia replied, “I’m an originalist, but I’m not a nut.”