Sixteen years have passed since the first President Bush nominated Clarence Thomas to the Supreme Court, calling him “the best qualified at this time,” sixteen years since the “high-tech lynching”–Thomas’s famous phrase–left him a bitter and isolated man. During his time on the bench, Thomas has had more than a few opportunities to prove himself to be the most right-wing Justice in modern times (at least since FDR’s nemeses retired during the New Deal). Thomas, of course, almost always follows the lead of Antonin Scalia in claiming to embrace the “original intent” of the Founders, but only Thomas has argued that students have no free speech rights at all. Thomas alone has argued that the First Amendment’s separation of church and state applies only to the federal government, not to the states, meaning that Utah could declare itself a Mormon state or Georgia could declare itself a Baptist state. Thomas alone agreed with the second President Bush’s recent argument in Hamdi v. Rumsfeld that the President has the power to hold US citizens at Guantánamo indefinitely without a court hearing. In 2005 Scalia was asked at an appearance at a New York synagogue to compare his own judicial philosophy with that of Thomas. Jeffrey Toobin was in the audience, and in his new and fascinating book The Nine: Inside the Secret World of the Supreme Court, he reports Scalia’s answer: “I am an originalist, but I am not a nut.”
Scalia’s colleague has now published a memoir. It is a howl of rage and pain, and Thomas’s anger toward those who opposed his confirmation sixteen years ago is so lacerating that the New York Times editorial page suggested he recuse himself from cases involving the ACLU of Southern California, Yale Law School and Joe Biden, all opponents of his confirmation about whom he is particularly vituperative. But what’s even more striking about My Grandfather’s Son is Thomas’s belief that America is deeply, inescapably, incurably racist, and his view of himself as a black man hunted by white racists. He likens himself at his confirmation hearing to Bigger Thomas, the main character of Richard Wright’s 1940 novel Native Son, who is convicted of the murder and rape of a white woman. Thomas, of course, was accused not of murder or rape but rather of sexual harassment, and his accuser, Anita Hill, was black, not white; nevertheless, he says he felt as if “I’d been thrust back into Bigger Thomas’s world, a dark, cramped hell devoid of hope.”
Thomas has always believed America to be a racist country. In his college days at Holy Cross, in the 1960s, he was a black militant and an activist; he marched for the first time in 1968 after the King assassination and later helped to organize a Black Student Union walkout. He also worked in a Black Panther-style free breakfast program, brought Bayard Rustin to the campus, put a Malcolm X poster up in his dorm room and immersed himself in Malcolm’s speeches. After graduating from Holy Cross in 1971 he went straight to Yale Law School, where he worked part-time at a clinic screening poor people seeking free legal services, probably met fellow student Bill Clinton and devoted most of his effort to succeeding at Yale. He says he voted for McGovern in 1972. He also says that after graduation in 1974, all his white classmates ended up in good jobs, but he didn’t get a single offer. The explanation is obvious to him–he was black.
Up to this point, the story Thomas tells mostly resembles the one told in the indispensable Supreme Discomfort: The Divided Soul of Clarence Thomas, by Kevin Merida and Michael Fletcher, Washington Post staffers whose 2002 newspaper profile of Thomas detailed, for the first time, the extreme degree of his bitterness and isolation. They’re the first black journalists to write a book about him, something that they suggest gave them access–and perhaps insight–unavailable to whites; they interviewed several hundred people, including Thomas’s mother. Thomas, however, refused to talk to them. They did talk to one of his eleven African-American classmates at Yale, who says that most of the eleven received pretty good job offers.
Thomas eventually landed a job: as an assistant attorney general working for a Yale alum–Jack Danforth, at the time Republican attorney general of Missouri, who later spent eighteen years in the Senate. Thomas says he got the job because he was “talented.” But Merida and Fletcher were told a different story by Guido Calabresi, a Yale law professor. Calabresi said that in 1974, Danforth asked him to recommend a graduating law student who was “preferably an African American.” Calabresi recommended a black student who didn’t want the job, and that classmate suggested Thomas. The point is significant: Thomas got his first job as the result of a kind of affirmative action. It’s especially important because it was Danforth who led Thomas to the Republican Party, to White House appointments and to the Supreme Court.
During his migration to the right Thomas did not change his mind about racism in America; what did change was his view of what to do about it. Collective action for civil rights, he would eventually argue in many speeches and writings, only encourages “paternalism” in whites and a sense of “victimization” among blacks. Instead, he came to favor a version of Booker T. Washington’s gospel of self-reliance.
Why did Clarence Thomas change his mind about civil rights and black collective action? Thomas says that his political epiphany took place after a demonstration in Cambridge in the spring of 1970. He describes this event as “an antiwar rally,” but Merida and Fletcher establish that it was a protest about the New Haven trial of Bobby Seale and other Black Panthers, who had been accused of murdering a fellow Panther they suspected of being an informer. Thomas, at that point a student at Holy Cross in Worcester, says in his memoir that he participated in the trashing of Harvard Square when 3,000 kids fought 2,000 cops, breaking windows, looting stores and setting fires. Thomas says his group was drinking and joined in “a full-scale riot…well into the night” despite the police firing tear gas. Merida and Fletcher quote him as saying he realized then that “I had become addicted to being a victim of oppression.” In his memoir he says that after that night he decided he would no longer “whine about ‘the man'” and instead would adopt a “philosophy of self-reliance.”
Did he adopt his “philosophy of self-reliance” after that demonstration, or did he sell out his activist ideals later, in exchange for growing power in Republican administrations? Merida and Fletcher don’t really answer the question, although they do trace the rightward drift of his ideas. In 1979 Danforth brought him to Washington, DC, to work in his Senate office; Thomas says in his memoir that he registered as a Republican in 1980 and voted for Reagan. That December, one month after Reagan’s victory, Thomas appeared for the first time in the Washington Post, quoted by Juan Williams as a young black conservative who thought welfare destroyed black people by undermining their desire to work. As an example, he cited his own sister. That got people’s attention.
One month later, in 1981, Reagan took office and appointed Thomas assistant secretary for civil rights in the Education Department; the following year Reagan made him head of the Equal Employment Opportunity Commission. Thomas was 32. An unnamed colleague at the EEOC told Merida and Fletcher, “His feeling was, ‘I am the highest ranking African American lawyer in the government and Thurgood Marshall is getting up in age. When they start looking around for a replacement, I want to be in position for that.'” Others had the same thought. In 1990 Bush nominated Thomas for a seat on the US Court of Appeals for the District of Columbia Circuit. His record there was unremarkable; even Thomas doesn’t claim any significant achievements. The next year, Marshall announced his retirement from the Supreme Court, and Bush needed to find a black conservative. “The list of plausible candidates who fit both qualifications,” Toobin writes, “pretty much began and ended with Clarence Thomas.”
Thomas’s version of these events in his memoir is different. He says that even when he decided to leave the EEOC in 1990, becoming a judge never occurred to him; he agreed to be nominated for the Court of Appeals only because he thought “maybe this is God’s way of telling me what to do”; it had never occurred to him that Bush might nominate him to the Supreme Court–until just before his Senate confirmation hearing for the Court of Appeals, when Joe Biden told him that might happen. He understood Biden to be warning him the Democrats would try to stop him. And in his memoir he never mentions anybody expecting the elderly and ailing Thurgood Marshall to resign. Finally, in his description of Bush announcing his nomination, Thomas does not quote the President telling Americans he picked Thomas because he was “the best qualified”–a statement whose absurdity has haunted Thomas ever since.
The White House plan for Thomas’s confirmation called for emphasizing the Algeresque story that the man from Pin Point, Georgia, rose from a wooden shack to the highest court in the land. “Without Pin Point,” Merida and Fletcher write, “Thomas would never have made it to the Supreme Court.” And sure enough, Thomas goes to the well again in his memoir, which begins with the Pin Point story.
There was, however, the problem of his qualifications. In 1991 Thomas had been a judge for only a year. Before that he had never argued a case in any federal appeals court, much less the Supreme Court. He “had never written a book, an article, or even a legal brief of any consequence,” Toobin notes. Given his utter lack of experience, and in light of the story Merida and Fletcher tell, it’s beyond belief that Thomas’s success owes nothing to the various forms of affirmative action and racial preference he has come to despise.
As Jeffrey Toobin shows in The Nine, a behind-the-scenes account of the Court from 1992 to 2005, Thomas isn’t the only Justice whose presence on the bench is dispiriting, if not embarrassing. Toobin is especially incisive on the Court’s performance in Bush v. Gore, a case where the Justices, he says, “did almost everything wrong.” The case brought out the “worst flaws” of each Justice. William Rehnquist: intellectually lethargic but politically energetic; Sandra Day O’Connor: eager to appear moderate but more eager to keep the White House in Republican hands; Antonin Scalia: relying on intimidation in place of logic, open partisanship in support of Bush; Anthony Kennedy: incompetence made worse by pretentious rhetoric; Ruth Bader Ginsburg: weakness and an inability to take on the other side; Stephen Breyer: confusion and ineptness in seeking the middle of the road; and finally Thomas: angry, grim and deeply biased. For Toobin, only John Paul Stevens made logical and consistent arguments with a clear constitutional basis.
Toobin also effectively dismantles the majority ruling in Bush v. Gore. The Court stopped the recount of Florida votes (Bush was ahead), arguing that because Florida lacked a uniform standard for recounting ballots in different counties, the recount violated the equal protection clause. But as Toobin explains, “No court, much less the Supreme Court, had ever before imposed any kind of constitutional rule of uniformity in the counting of ballots. Most states, including Florida, used different voting technologies in a single election.” If the Justices really believed it was their job to assure a uniform standard for the recount, they should have instructed the Florida legislature, or the Florida Supreme Court, to do that. By blocking a recount, the Court “preserved and endorsed a less fair, and less accurate, count of the votes.” Finally, they declared that their ruling regarding uniformity in the counting of ballots did not apply to any other elections–it applied only to the Florida vote for the plaintiff, George W. Bush.
The aftermath of Bush v. Gore is remarkable. David Souter was so shaken by the crude partisanship of the majority that, according to Toobin, he “seriously considered resigning.” At the time the case seemed to mark the iron grip of the conservative majority, but as Toobin shows, the real result of Bush v. Gore was that O’Connor and Kennedy turned away from the right-wing majority, especially on the death penalty, affirmative action, gay rights and the President’s claims of executive power in the Hamdi case.
Toobin argues that, overall, the Court deals with two kinds of cases: “There were abortion cases–and there were all the others.” Presidents nominate Justices primarily on the basis of their position on Roe v. Wade, and confirmation hearings revolve around Roe v. Wade–although, of course, all nominees deny in all confirmation hearings they have a commitment on any particular case. Thomas himself testified that he’d never even discussed Roe v. Wade. The whole “original intent” school of constitutional interpretation is “a proxy,” Toobin argues, for the campaign to reverse Roe v. Wade; for the originalists, since the men who wrote the Constitution never intended it to protect abortion, there is no constitutional right to abortion. When Roe passed in 1973 the vote was 7-2. By 1986, the vote to uphold Roe was 5-4. As Toobin explains, the lesson for conservatives was clear: “They didn’t need better arguments; they just needed new justices.” Clarence Thomas was nominated for the Court in 1991.
The vote in the Senate on Thomas was 52-48, the smallest margin of any Justice in more than a century. A shift of just three votes would have kept Thomas off the Court. Liberal readers will gnash their teeth over Merida and Fletcher’s report that enough senators came to regret their vote a year or two later that they would have made a majority against his nomination: David Boren, Democrat of Oklahoma; John Breaux, Democrat of Louisiana; Ernest “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; now Orrin Hatch says that, even if Hill told the truth, what she said about Thomas sexually harassing her wasn’t really all that bad.
Thomas’s predecessor on the Court, Thurgood Marshall, retired at 83. If Thomas does the same, he’ll serve until 2031–another twenty-four years. When Justices Souter, Kennedy and O’Connor moved away from the Court’s right wing, the media described them as “evolving.” Thomas once posted a sign in his office that read, “I ain’t evolving.” Nobody is disagreeing with him about that.