The long-awaited publication of Clarence Thomas’s memoir, "My Grandfather’s Son," out Monday, makes you wonder: how come none of the presidential candidates have said a word about the Supreme Court in any of their debates? Three sitting justices are expected to resign in the next four years–and they’re all on the liberal side: John Paul Stevens, David Souter, and Ruth Bader Ginsburg.
The publication facts behind Thomas’s book ought to be discussed by all the candidates: he received an advance of $1.5 million in 2003 from HarperCollins, which is owned by Rupert Murdoch. If you thought the Court dealt with any issues of relevance to Murdoch, you might call it a conflict of interest for Thomas to accept that payment–far more than any sitting justice ever received from any single source. At least you might mention the fabled "appearance of impropriety." You might call the $1.5 million a thank-you gift from Murdoch for services rendered. You might even wonder if it might be a subtle suggestion to other justices who will be ruling on Murdoch-related issues in the future.
Of course Thomas could avoid that "appearance of impropriety" by recusing himself for the rest of his career from any case raising issues concerning Murdoch, Fox, the First Amendment, copyright law, libel, or any other issues in media or communications law. That would give him a lot of time off.
Yes, it was the first President Bush who nominated Clarence Thomas to succeed civil rights legend Thurgood Marshall – but it was Democrats in the Senate who put him on the court. The teeth-gnashing facts about Clarence Thomas’s confirmation can be found in the new book by Washington Post reporters Kevin Merida and Michael Fletcher, "Supreme Discomfort: The Divided Soul of Clarence Thomas." The vote in the Senate on Thomas was 52-48 – the smallest margin for any justice in more than a century. A shift of three votes would have kept Thomas off the court.
Here’s the horrible part: at least four senators who voted for Thomas came to regret their vote within a year or two. Merida and Fletcher report that the senators who changed their mind about Thomas after voting for him include David Boren, Democrat of Oklahoma; John Breaux, Democrat of Louisiana; Fritz Hollings, Democrat of South Carolina, and Warren Rudman, Republican of New Hampshire.
Even some of Thomas’s most avid defenders stopped saying he told the truth about Anita Hill; Orrin Hatch told Merida and Fletcher that, even if Anita Hill told the truth, what she said about Thomas sexually harassing her wasn’t really all that bad.
As for Thomas’s memoir, it’s a long howl of outrage against the liberals who opposed his confirmation 16 years ago. The book was treated by HarperCollins as if it were the next Harry Potter – "embargoed" until Oct. 1, the first day of the Supreme Court’s fall term — a total clampdown that made it impossible for anyone to buy the book until Monday morning. I tried to buy it at my local Barnes and Noble Sunday night at 10 pm, and was told by a nervous manager that if they sold it to me even two hours before the "embargo" ended, "the publisher would see it on the computer and we’d be fined."
Yet somehow Rush Limbaugh managed to get hold of a copy – Thomas appeared on his show for a full ninety minutes Monday morning. (Maybe the fact that Thomas presided at Rush’s wedding was a factor here – an unprecedented act for a sitting Justice.) Murdoch’s Fox News was next in line, with a Sean Hannity interview Tuesday.
On the other hand, Nina Totenberg, NPR’s Supreme Court reporter, who broke the sexual harassment story during Thomas’s confirmation hearing back in 1991, did a piece on the book on Saturday. She’s one of Thomas’s nemeses; somebody will definitely be in trouble for the fact that she beat the embargo.