WASHINGTON -- U.S. Supreme Court Justice Clarence Thomas said Americans are understandably losing confidence in their government, lamenting that the nation's capital has become "broken in some ways."
Speaking just days after marking his 25th anniversary on the court, Thomas entertained a friendly audience at the Heritage Foundation in Washington on Wednesday with stories about his late colleague Antonin Scalia and a wisecrack about the Patient Protection and Affordable Care Act.
Thomas, 68, didn't directly address the vacancy that has lingered since Scalia's Feb. 13 death, but when asked about it and the judicial confirmation process, he delivered a somber assessment.
"The city is broken in some ways," said Thomas, who was narrowly confirmed in 1991 after a contentious hearing centering on sexual-harassment allegations. "At some point, we have got to recognize that we're destroying our institutions."
Thomas said he understood the perception that the court, which now has four Republican and four Democratic appointees, was just another political branch of the government.
"I don't think people owe us, reflexively, confidence. I think it's something we earn," he said. "Perhaps we should ask ourselves what have we done to not earn it or earn it."
Those sober remarks stood out in a session otherwise marked by laugh lines and passionate defenses of his constitutional reasoning. Thomas said that during one Supreme Court session, Scalia leaned over to say that a precedent being discussed was one of the worst in the court's history. Thomas said he reminded his colleague, "Nino, you wrote it."
Discussing his frequent trips to Gettsyburg, Pa., Thomas briefly pondered what the world would be like if the South and General Robert E. Lee hadn't been defeated in the pivotal Civil War battle there.
"If Lee had won, that'd have been a problem," Thomas, who is black, said to the white moderator. As the audience began to laugh, he added, "It'd have been more of a problem for me than you."
Thomas also couldn't resist a quip about the Affordable Care Act, which he voted to strike down in 2012, and the recent news that premiums on some health plans are rising an average of 25 percent.
The law's name, Thomas said, "seems like a misnomer, considering all the things that are going on."
The nation's top court has operated with eight justices since February, when Scalia died. Republicans in the Senate have declined to hold hearings for President Barack Obama's nominee, Merrick Garland, saying they should wait until after the election.
Sen. Ted Cruz, who led the charge that partially shut down the federal government in 2013 in opposition of the Affordable Care Act, on Wednesday raised the specter of leaving an indefinite vacancy on the Supreme Court under a President Hillary Clinton.
"There is long historical precedent for a Supreme Court with fewer justices," the Texas Republican told reporters while campaigning for a Senate candidate in Colorado. "Just recently, Justice [Stephen G.] Breyer observed that the vacancy is not impacting the ability of the court to do its job. That's a debate that we are going to have."
White House spokesman Josh Earnest said Thursday that Cruz's suggestion of an indefinite vacancy raises questions about the credibility and integrity of Republicans who have said the next president should get to the choose who fills the vacancy.
He said historically that the Senate has evaluated candidates on the basis of their merits
"Republicans this year have deviated from that tradition by refusing to even consider Chief Judge Merrick Garland to fill the vacancy on the Supreme Court," Earnest said.
Sen. John McCain said earlier this month that Republicans would unite against any Supreme Court nominee that Clinton puts forward if she becomes president, though an aide later said that McCain would examine the record of anyone nominated for the high court and vote for or against that person on the basis of their qualifications.
The size of the court is set by federal law and has changed over the years but has been nine justices for most of its existence. Initially, there were six justices. The court reached its highest number, 10, during the Civil War. There has been a nine-justice court since 1869.
Groping alleged
Separately, an energy company lawyer said Thursday that Thomas touched her inappropriately at a 1999 dinner in suburban Washington.
Lawyer Moira Smith said in a statement that she was 23 when "Justice Thomas touched me inappropriately and without my consent." Smith, now vice president and general counsel of Enstar Natural Gas in Anchorage, Alaska, was then a recent graduate of Georgetown University who was spending the year as a Truman Foundation scholar in Washington.
Two of Smith's roommates back then confirmed to reporters that Smith told them what happened just after the dinner. Smith didn't go public until this month.
Thomas said the claim is "preposterous" and "it never happened."
Smith's story and Thomas' denial were first published by Law.com.
Thomas' high court confirmation in 1991 was nearly derailed by Anita Hill's claims that Thomas sexually harassed her.
Information for this article was contributed by Greg Stohr of Bloomberg News; by Noah Bierman of Tribune News Services; and by Mark Sherman and Kevin Freking of The Associated Press.
A Section on 10/28/2016