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January|February 2005
Time Bomb at Mauna Loa By Bill McKibben
Pharma Furor By Richard A. Epstein
Elsewhere
Not So Free Speech By Rod Smolla
Touting Thomas By Stephen B. Presser

Touting Thomas

The truth about America's most maligned justice.

By Stephen B. Presser

FEW IN THE LEGAL ACADEMY HAVE HAD GOOD THINGS TO SAY about Clarence Thomas or about his jurisprudence. The criticism started in 1991 when Thomas, who had served as a federal court of appeals judge for under two years, was nominated, at the age of 43, to the highest court in the land. He was confirmed by the Senate by 52 to 48, the slimmest margin of anyone who has prevailed in the process. Since then, Thomas has been lambasted as a "handkerchief-head," a "chicken-and-biscuit-eating Uncle Tom," and even "a little creep," by other African-Americans with whose philosophy Thomas does not agree. His legal critics have derided Thomas as the "youngest, cruelest justice" because of an opinion he wrote that narrowly construed the Eighth Amendment's cruel and unusual punishment clause. There is even a whispering campaign to suggest that Thomas is merely a puppet of the more publicly dazzling Antonin Scalia. (Thomas himself has joked that Scalia controls him through a chip implanted in Thomas's brain.) Thomas rarely asks any questions from the bench, and the conventional wisdom is that he doesn't have the wit that others display for the often sophisticated and subtle repartee between the justices and the lawyers who are before them.

Three questions, then, hang over a man who, with President Bush's likely opportunity to appoint several justices, could become a central member of a new court majority. Was Clarence Thomas merely one of very few conservative black lawyers whom the first President Bush could find to replace Thurgood Marshall, the first black man to serve as a Supreme Court justice? Was Anita Hill telling the truth when she accused Thomas of sexually harassing her by telling her tales of his amatory prowess and by regaling her with the porn-flick antics of Long Dong Silver? And is Thomas in over his head on the court, hopelessly unable to keep up with the other justices?

The answer to all three questions is no, and it is the singular achievement of Ken Foskett's fair-minded, absorbing, and immensely readable new book, Judging Thomas, that he explodes the conventional wisdom and, perhaps for the first time, introduces us to the real Clarence Thomas.

WE HAD HINTS WHEN THOMAS WAS NOMINATED that he had emerged from rural poverty, but we haven't known the scale until now. Foskett begins the book with the detailed story of the young black boy from Pin Point, Ga., and his early environment in which the effete English of the Supreme Court or the Ivy League was spoken by no one, and where a Southern patois was the vulgar tongue. Thomas's parents' marriage failed, and his mother sent Thomas and his brother to be raised by his maternal grandparents. His grandfather, a stern, eminently competent, and aloof man who ran a fuel oil and cinder block business, had virtually abandoned his daughter and had little interest in her sons. But Thomas's grandmother insisted. The result was that his grandfather enlisted Thomas and his brother to help in his businesses and on his farm, where they worked backbreaking hours, and insisted further that they learn self-reliance. By the time he was ready for high school, Thomas knew how to build houses, plant crops, fix machines, and string fences.

His grandfather, a Catholic, wanted Thomas to get an education sufficient to lift him out of rural Georgia, and Thomas soon found himself in an all-black high school run by white nuns dedicated to making something of their charges. To this day Thomas credits his grandfather and the nuns with everything he has achieved, but his admission to Holy Cross College and to Yale Law School likely resulted from the affirmative action policies in place at those institutions in the '70s—as were, of course, Thomas's positions as chair of the Equal Employment Opportunity Commission, a bureaucrat in the Department of Education's Office for Civil Rights, and assistant attorney general for the state of Missouri.

Even though there may be no denying that Thomas wouldn't be where he was were he white, when you consider what he has done as a justice, a singular and worthy pattern of achievement appears. There can be no doubt that Thomas's approach to the Constitution is the clearest contemporary example of originalism, a belief that the Constitution and its amendments ought to be interpreted only in the manner in which they were understood by those who framed and ratified them. Anything else, for Thomas, is judicial usurpation of the legislative role.

This aspect of Thomas's judicial philosophy has been no secret (it was one of the themes of Scott Gerber's 1999 jurisprudential study of the justice, aptly named First Principles). But Foskett, at least according to one Washington Post op-ed writer, has revealed a "bombshell" by quoting Scalia in saying that in constitutional cases, Thomas "doesn't believe in stare decisis, period," referring to the practice of following judicial prior precedents instead of re-examining the merits anew each time a decision is made. With this view, Thomas differs even from his purported puppeteer, as Scalia acknowledged to Foskett. According to Scalia, Thomas believes that "if a constitutional line of authority is wrong, [Thomas] would say 'Let's get it right.' I [Scalia] wouldn't do that."

That this should be regarded as a "bombshell" tells us a great deal about the failings of contemporary reporting on the court. The idea that the common law doctrine of stare decisis has little or no applicability in constitutional decision-making has been repeatedly advanced by some conservative law professors, most notably by Gary Lawson at Boston University, and by this reviewer as well. For us, and for Clarence Thomas, it's more important to get it right than to maintain continuity.

Perhaps for Thomas the maxim "fiat justicia, ruat coelum" ("Let justice be done though the heavens fall") is one of his vaunted first principles. More likely, Thomas's inclination to be skeptical of precedents flows from the fact that he is more faithful to the understanding of the framers, and more impressed by their wisdom, than he is to the people who come to sit for a while on the bench. Foskett quotes Rehnquist's marvelous statement to Thomas that he would spend the first five years he was at the court wondering how he got there and the rest of his time trying to figure out the same thing about his colleagues. As Thomas enters what is a more ruminative stage of his jurisprudence, he seems to believe more and more (as did Benjamin Franklin and George Washington) that the time of the framing was a special one, touched by the hand of Providence. If Thomas eschews stare decisis and wants to get back to the original understanding, this appears to be the reason.

Fidelity to the framers' vision also explains Thomas's work in the area of interstate commerce, where he has moved further in the direction of restricting the reach of the federal government's power over the commerce clause and embracing federalism than any other justice on the Rehnquist Court. This is of particular significance since the Rehnquist Court's most notable achievement has been, for the first time in almost six decades, to restrict the ambit of what Congress can do, and to remind us that the United States was conceived as a nation in which the states would be the primary law-givers. Thomas has indicated that, if he had his way, he might very well undo most of the New Deal. This is anathema to liberals, as is his general disdain for racial redistricting and affirmative action. Nor are they happy about Thomas's position on abortion, which, like Scalia's, is that the Constitution offers it no protection, because none of those framing the document or the Bill of Rights believed they were engaging in actions that would restrict state prohibition of the practice.

It is hard not to conclude that it was Thomas's possible inclination to overrule Roe v. Wade—just as it has been the similar possible activity on the part of every Republican nominee since Bork—that caused all the trouble in his hearings and led to the emergence of Anita Hill, whose feminist friends pushed the reluctant witness forward. If Thomas was tarred as an unscrupulous masher, so the theory may have been, he could be stopped before he defeated the right to choose. And if what Hill said about Thomas was true, you would not only have to question his morals, but his honesty in claiming that he was the victim of a "high-tech lynching," that he'd been cast as an uppity black man who had the effrontery to stroll off the plantation and think for himself.

Despite the great amount that we still don't know about the conflict, Foskett implies that it was Thomas who was the honest one, since Hill's behavior toward Thomas until she appeared at the Senate hearings had always suggested she relied on him as a friend and mentor and bore him no ill will. She had even asked to accompany him when he moved from the Department of Education to the EEOC. As was pointed out at the time, this could still have been the abashed behavior of a victim of sexual harassment. Nevertheless, other women who worked with Hill and Thomas emphatically testified that Hill was not the meek and abused person she appeared to be before the Senate Judiciary Committee, and that they had never seen any unseemly behavior on the part of Thomas toward Hill or anyone else. They also testified that he had a firm policy against sexual harassment that he sought to implement at the EEOC, that he was careful to treat the women he worked with respectfully, and that he was firm about not dating his employees.

Foskett does note that Hill furnished another woman to whom she complained of Thomas's behavior many years before the fateful Senate hearings, and that Hill herself seemed a credible witness. At the time, the most fair-minded observers thought both Hill and Thomas probably believed what they were saying, even though one of them must have had his or her facts wrong. Foskett doesn't tell us much about Hill's background. But what he tells us of Thomas's upbringing and character, his random acts of kindness, and the adoration of him by his friends and clerks, lends credibility to the judge. Foskett's account of the agony Thomas suffered in the course of those Senate hearings, his feelings of anger, betrayal, and bewilderment at Hill's charges, seems more to be the reaction of a person genuinely wronged than a miscreant caught out.

At the time it was said that only God, Thomas, and Hill knew who was telling the truth, and perhaps only God does. But Thomas, a man of God, was being sorely tested by his Lord, and if you can believe Aeschylus' dictum that you only acquire wisdom by suffering, then Thomas has had the chance to acquire more than most Supreme Court justices. According to Foskett, it took Thomas almost a decade to recover from the slander, calumny, and very public excoriation of the Hill debacle. But Foskett reports that Thomas has become a happy man: He feels lucky in his marriage, thoroughly engaged in the task of raising an adopted young grand-nephew (things having come full circle from the time that Thomas was raised by his grandfather), comfortable in the company of his fellow justices and his friends, and increasingly confident about his voice in public and private speeches. He drives a limited-edition black Corvette and a 40-foot luxury touring bus on which he spends summers, in the company of his family, roaming the country. Not a bad life.

THOMAS IS APPROXIMATELY 30 YEARS THE JUNIOR of his oldest colleagues on the court, and he now has the time and the inclination to fearlessly develop his ideas on law and the Constitution. His opinions, compared to those of his colleagues, are more passionate, more free from jargon, more transparent, and more self-consciously linked, as Scott Gerber put it, with the first principles of our nation. In Foskett's nice summary, Thomas "wants decisions that even a gas-station attendant could read and comprehend."

Naturally, people are most interested in Thomas's views on racial issues, and there is some irony in that Thomas has become the court's most consistent enemy of racial preferences. In his opinions and increasingly frequent public appearances, he has praised the first Justice John Marshall Harlan's dissent in Plessy v. Ferguson, where he called for a "color-blind" constitution. In a recent profile of Thomas, The Washington Post reported that he counsels others of his race to avoid being pigeonholed into "black" positions such as those in the Civil Rights Division of the Justice Department, and Thomas himself resisted similar assignments before accepting them on his trajectory to the court. He now appears to believe that the costs of affirmative action outweigh the benefits and that blacks in particular suffer because of the rarely spoken but always present assumption that any black person in government (or anywhere else, for that matter) achieved his or her position because of racial preferences, and not on their merits. This seems to have been felt keenly by Thomas himself.

Thomas makes no effort to hide that race consciousness plays a part in his opinions, and he writes very much in the tradition of noble black protest. Occasionally he comes close to the poetic, as he did in his dissent in the University of Michigan Law School affirmative action case, when he quoted one of his idols, Frederick Douglass, and explained, "The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. Do nothing with us! . . . If the Negro cannot stand on his own legs, let him fall . . . All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury."

This is not to say that Thomas is insensitive to the continuing problem of racial prejudice in America—just that he thinks racial preferences for blacks tend to perpetuate rather than eradicate it. Perhaps the first President Bush was being honest when he said race played no part in Thomas's selection to the court (though no one believed him then), but it is clear that race plays an important, perhaps even a vital part in Thomas's jurisprudence now, and we as a nation are better for it. I think Bush got it right when he stated that Thomas was the best man for the job and that our current President Bush has wisely taken the cue from his father.

Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law and the legal affairs editor for Chronicles: A Magazine of American Culture.

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