Judging Clarence Thomas

By Earl Ofari Hutchinson, AlterNet. Posted August 18, 2004.

The most revealing quip in Supreme Court Justice Clarence Thomas' newly published biography Judging Thomas was made by Thomas' conservative high court sidekick, Antonin Scalia. He chides Thomas as a judge who is not bound by the constitutional line of authority. Loosely translated, that means that Thomas goes his own way when he makes decisions. He certainly has done that. In a memorable case in 2002, Thomas cast the lone vote against granting a stay of execution to Texas death row inmate Thomas Miller-El on the grounds that Dallas prosecutors systematically excluded black jurors in his trial. Thomas' nonsensical vote was so far over the top and totally out of line with the overwhelming evidence of racial exclusion in the case, that even the court's other hard-line conservatives, Justices Rehnquist and Scalia couldn't go along with him.

That lone dissenting vote on a prisoner rights case was vintage Thomas. Before, during, and after his raucous Senate confirmation hearing in 1991 in which Thomas was smeared with charges that he sexually bullied Anita Hill, charges that almost torpedoed his nomination, Thomas has been the racial anti-Christ. He has waged relentless war against civil rights leaders and liberal Democrats. He has been hailed and feted by the radical right. President Bush singled him out as one of his two favorite justices (Scalia is the other).

In trying to make sense of Thomas' doctrinaire, contrarian court votes and opinions, the simple answer is that they are payback to civil rights and civil liberties groups for trying to wreck his confirmation to the high court.

There's probably some truth to this. In an American Enterprise Institute lecture in 2001, Thomas cloaked himself in the martyr's garment and said that he expected to be treated badly for challenging liberal opinion. But it's also true that no matter how outlandish and obstructionist his votes on the court appear, Thomas is in step with the political conservatism of many whites, and the social conservatism of many blacks.

Even as civil rights leaders grabbed headlines and the cameras for mercilessly savaging Thomas at his confirmation hearings in 1991, a parade of blacks quietly praised Thomas' views and backed his appointment. They were not front men on the payroll of the Heritage Foundation or other conservative think tanks.

On the eve of his confirmation hearing, a near majority of blacks told pollsters that they were pro-life, pro-school prayer, and anti-gun control. A significant number even opposed affirmative action programs. Polls conducted over the years by the Joint Center on Political and Economic Studies reconfirm that many blacks share Thomas' views on social and political issues. Black parents and students at a middle school in Landover, Maryland made national news a few years ago when they battled civil rights groups who tried to scotch their invitation to Thomas to appear at their school.

Though Thomas reflexive judicial salvos against prisoner rights keeps him in hot water with civil liberties groups, the issue of crime and punishment is a thorny one for blacks. Polls show that a significant number of blacks back three strikes laws and mandatory drug sentencing laws. Their biggest volte-face has been on the death penalty. In the past, blacks were the staunchest opponents of capital punishment. The death penalty has been a vicious, blatantly racist weapon wielded by prosecutors, particularly in the South, against blacks.

But the fear of crime has softened black opposition to the death penalty.

The issue that keeps Thomas in hot water with civil rights groups is his relentless assault on affirmative action. Thomas benefited mightily from affirmative action programs in gaining admittance to a catholic high school, Holy Cross College and later Yale Law School. But as chair of the EEOC, and in his Supreme Court rulings, Thomas has done everything possible to obliterate affirmative action programs. But many blacks have also voiced strong opposition to affirmative action. They see it as insulting, demeaning and a scarlet letter curse that implies they need the crutch of affirmative action programs to succeed in business or the professions.

White House lawyers reportedly have interviewed Thomas as a possible replacement for Supreme Court Chief Justice William Rehnquist when he retires. If Bush is re-elected and he nominates him, he would be the first African-American chief justice, and at age 56, he could hold that position for decades. He could imprint his conservative view indelibly on crucial court rulings. But he'd have to be confirmed, and that would ignite another battle royal with civil rights groups. But many blacks would be ambivalent toward his nomination. Some publicly, but many more privately, would applaud it solely because it would represent a racial first.

Thomas is a man many love to hate. But he's also a black man who could play a major role in making and shaping law and public policy. If so, we'll be judging Thomas for a long time to come.

Earl Ofari Hutchinson is an author and political analyst. He is the author of 'The Crisis in Black and Black' (Middle Passage Press).

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