The Method To Thomas' Madness

Three years ago Supreme Court Justice Clarence Thomas cast the lone dissenting vote in the Supreme Court's ruling that Dallas prosecutors systematically excluded black jurors in the trial of black Texas death row inmate Thomas Miller-El. It was vintage Thomas. The court's only black member argued that Dallas prosecutors were color blind in trying black defendants.

That was a big stretch even for Thomas. There was near smoking gun proof that Dallas prosecutors, bullied, cajoled, and ultimately axed nearly every prospective black juror in Miller-El's trial. They blatantly juggled the juror pool, not once but twice, to get more whites on his jury. They even used a manual with tips on how to dump blacks from juries. None of this was new. A 1963 circular distributed in the Dallas DA's office virtually ordered prosecutors to dump blacks from jury panels. Thomas' hard-line high bench pals, Justices William Rehnquist, Antonin Scalia, and on more occasions than not, Anthony Justice Kennedy, broke ranks with him on the earlier Texas case and ruled that Dallas prosecutors were guilty of racial bias.

In the court's latest ruling on the Miller case, Thomas corralled Scalia and Rehnquist into agreeing with him that there was no race bias in Texas jury selection. In another similar case, the justices ruled that California put up near impossible barriers for defendants to prove racial bias in jury selection.

This time, Thomas was the lone dissenter. He flatly said that the state can and should be allowed to do as it pleases in crafting rules of criminal procedures. In other words if a state wants to discriminate in jury selection it should be allowed to do so. That means black and Latino defendants can be tried by all white juries, poor defendants by wealthy jurors, and young defendants by senior citizens. Thomas would toss the notion that defendants should be tried by a jury of their peers. If America's jails bulge with the poor, young, and mostly minority prisoners now, they'd spill over into the sea if Thomas' dangerous legal logic ever became standard legal practice.

Thomas's ridiculous lone wolf votes on race based court cases make no sense to most legal experts. There are undeniable abuses in the criminal justice system, and anyone with the least bit of experience with judges and juries knows that, and that includes Thomas. But Thomas' rulings do make sense if one considers that they have less to do with his jaundiced interpretation of law and its practice than with his publicly expressed racial views, and his private vow to get revenge.

During his high court confirmation fight in 1991 civil rights, and civil liberties groups pounded him for his anti-affirmative action, anti-abortion, and anti-prisoner rights views. The Senate confirmed him by the narrowest vote of any high court judge in recent memory. The rebuke stung, and Thomas didn't forget or forgive. In an American Enterprise Institute lecture in 2001, he wrapped himself in the martyr's garment and said that he expected to be treated badly for challenging liberal opinion.

When asked how long he'd stay on the court, he reportedly said that he'd stay there for next 43 years of his life. He was 43 at the time. In a more revealing aside, he supposedly quipped to friends that it would take him that long to get even. Whether that is hyperbole or an apocryphal tale, it hasn't taken him 43 years to wreak his revenge.

He has been a one man wrecking crew to expunge race from law and public policy decisions. But this is not simply one man's personal bitterness over his alleged mistreatment by liberals and civil rights leaders. Or a case of his digging his heels in to push his retrograde view on racial matters. He wants more judges to think and act like him on the bench. And all the better if those strict racial constructionist judges happen to be minorities. He's bagged one convert. California Supreme court justice Janice Rogers Brown views on race, law and public policy carbon copy Thomas's. The controversial Brown was recently confirmed as an appeals court judge. If Thomas can keep foisting his outlandish dissents on the court in key race bias cases, the peril is that he'll get more judges such as Brown to think and rule as he does in crucial cases that involve race and civil liberties.

In future years, Brown and Bush's other pack of recently confirmed ideologue judges to the appeals courts will deal with the sensitive issues of minimum mandatory sentencing, DNA testing in capital cases, the search and seizure laws, and racial profiling. Those cases will ultimately wind there way up to the Supreme Court. The judge's rulings and dissents in these cases can permanently reshape America's legal landscape, for good or bad.

Thomas' votes on these cases are predictable. He wants to make sure that he's not alone in voting his way.


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