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Thomas’s Confirmation: The True Story

Yet whatever one thinks of the lynching trope, it worked. And one aspect of Thomas’s character was vindicated—his audacity. The nerve of it is breathtaking. He had, in effect, ceded the areas of competence and constitutionalism: he was “out to lunch” when it came to subjects about which he was expected to be knowledgeable, and he gave up all his earlier comments on “natural law,” on ideas in general. He had staked everything on character—and now he would not answer any questions about his character. He sat there on his last limb, and angrily started sawing it off, with this dare: “Catch me before I fall, or you are all racist lynchers.” And, to their shame, the senators, shamefacedly, caught him.

But weren’t Hill’s charges false, or at least suspect? Even if they were, Thomas’s performance did not merit confirmation. It is also a mark of character—of judicial temperament if you will—to face criticism as a lawyer, with arguments, not with torrents of invective against the committee for asking questions one does not want to hear.

Hill is criticized for not coming forward sooner, for not being willing to appear, for following Thomas from job to job after he alleged harassment, for keeping in touch with Thomas, by phone and in person. But experts in sexual harassment say this is normal behavior for women, who still feel vulnerable in the professional world, who fear the unpleasantness of sexual revelations and the distrust with which such charges are treated. Black women say the pressures are far greater on them, reflecting their even more precarious perch in the professional world, the greater impact of sexual stereotyping in their case, and the pressure not to undermine any black man. There were misunderstandings in Hill’s testimonies—though not enough to justify Arlen Specter’s ferocious brandishing of a charge of perjury (a charge he has withdrawn).31

Senator Paul Simon believes that Hill might have been vindicated if other women had been called at the last minute. I doubt it. In the overheated rush that the Thomas team had demanded and Chairman Biden accepted, little was to be learned. This was an atmosphere in which Orrin Hatch claimed that Hill must have lied because a thing she mentioned was also mentioned in The Exorcist. (If she had said Thomas called her a bug, Hatch would presumably have proved that the exchange did not take place by brandishing Kafka’s Metamorphosis.)

In Strange Justice Mayer and Abramson have found additional women and men who say Thomas talked dirty to them and looked at pornographic movies. This will do little to convince those who favor Thomas. Indeed the focus on Hill is a way of guaranteeing that people will talk past each other, trading allegations about pubic hair (on a Coke can or in students’ papers) the way earlier combatants argued the details of bullet tests on Sacco’s gun or typewriter characteristics in the Chambers documents.

The Mayer-Abramson book is valuable not for its focus on Hill but for the larger picture it gives of Clarence Thomas’s life of grievance (at black skin, at civil rights leaders, at family, at liberals). The man who lied about his grandfather’s conversion to Republicanism, who called his nieces and nephews morally destroyed, needs little more in the way of discrediting. Besides, whether he committed perjury over Hill is less important than the other ways he deceived Congress in order to be confirmed. He said he was stripping off all ideological ties in order to be an impartial justice, without opinion outside the court—yet he has spoken to right-wing groups (sharing a platform with fellow speaker Oliver North), read right-wing journals (but not others), and performed the marriage (in his own home) of rightwing broadcaster Rush Limbaugh. He said he could not commit himself on abortion outside a judicial context, yet he accepted an invitation to address the anti-abortion group Concerned Women of America (withdrawing only after the ethics of his appearance was made a public issue). He spoke at a fund-raiser for a right-wing PAC.

More important are Thomas’s decisions. Thomas said he would bring diversity to the court by showing greater compassion for the poor, and especially for prisoners, than the other justices. He has shown less. 32 He told Senator Kennedy he would be aggressive in favor of voting rights. He voted against past voting rights decisions in Holder v. Hall (1994).33 He has been to the right of Scalia at times, stranding himself at one extreme.34 After not having an opinion on Roe v. Wade for eighteen years, he quickly expressed a strong one (of opposition) in Planned Parenthood v. Casey (1992). Never was a prediction more quickly proved wrong than was Orrin Hatch’s: “I do not think he will be an activist for conservative principles.”35 Of course, Hatch did not want his prediction to come true. It was as cynical a statement as was Bush’s appointment of the man to fill the seat of Thurgood Marshall. There was certainly no “presidential surprise” in Thomas’s case. He has done exactly what the right-wingers who put him up to Bush expected. As Gary Bauer says, “I have not seen any decision where I have been surprised or disappointed by Justice Thomas.”36

Those who discounted everything in Thomas’s record except his poor childhood look, now, like dupes. Liberals, including Maya Angelou, said (in effect) that race will tell. Civil libertarians like Nat Hentoff believed in Orrin Hatch’s prediction. Those who said that some black, any black, on the court was better than no black may have guaranteed that no Marshall-like appointment will be made during Thomas’s predictably long tenure. (Thomas has boasted that he means to serve for forty years.)37

4.

What To Do?

So, what’s wrong with the process? Some argue that “special interests” should have less to do with Supreme Court nominations. But, of course, their advertisements and lobbying are not part of the official proceedings; and the First Amendment allows even fools and greedy people to sound off about any subject they like, including Supreme Court appointments.

The first and most poisonous activity of a special interest occurred when the President nominated Thomas to placate the right wing of his party (which was chafing at his broken pledge not to raise taxes). Thomas was the favorite of the religious right’s principal lobbyist for judicial appointments, Thomas Jipping. Another problem with the Thomas nomination was the initial lack of mobilization by the civil-rights “special interests”—accomplished by the delays put in the way of NAACP action on the nomination. The White House collaborated with journalist Arch Parsons in persuading Benjamin Hooks to stall any quick reaction by the NAACP.38

Joseph Biden was surely dithering and ineffectual as a chairman. His omnidirectional soothings became irritants. One of the sources of Thomas’s theatrical rage against the committee was that he felt Biden had lied to and betrayed him. Biden claims he pledged to support Thomas “all the way” if news of Hill’s charges came out while she was unwilling to appear in support of them. When, however, she became a witness, a chairman’s declared opposition to her was inappropriate. Yet Thomas’s arrogant claim that he could set the rules for his own hearing was based on some poorly framed understanding of Biden’s commitments.

Biden had to admit Hill’s testimony when senators on the floor demanded it—and when Thomas, told he could not otherwise win the vote, agreed to a further appearance and delayed a vote. Biden, who later said he believed Anita Hill, tried to show an open mind toward Thomas—as he subsequently said to E. J. Dionne of The Washington Post, “in fairness to Thomas, which in retrospect he didn’t deserve.”39

The senators voted for Thomas, not because of any procedural failings in the system, but out of failure in their own mental and moral equipment—which there is no statutory way of remedying. A majority of them (though a slim one) was willing to write off matters on the record having to do with competence and constitutionalism. They took a blind leap of faith in his character, relying on the inoculation against unfairness provided by a youth spent in poverty—though one black expert witness assured them with conviction that poverty in youth had hardened more people than it had enlightened.40

What succeeded was a combination of presidential cynicism, senatorial fecklessness, and the nominee’s well-coached first appearance (topped by the huge effrontery of his “lynching” appearance). Any one of these factors, would have been insufficient. All put together, they won (though barely). Two more votes against Thomas would have made it necessary for Dan Quayle (standing by) to break the tie.

Is there any remedy? Danforth himself says he feared Thomas might be impeached if he committed perjury. But perjury is hard to prove under the best of conditions, and Thomas is safe now in his fortress-within-a-fortress, buttressed by ideological supporters.

In his book on nominations, Christopher E. Smith of the University of Akron finds a certain measure of comfort in Thomas’s performance on the Court. He thinks Thomas’s extremism on the right has scared off the centrist but right-leaning justices (O’Connor, Kennedy, and Souter), solidifying a bloc in the center.41 After all, even Rehnquist, once the right-wardmost justice on the Court, did not join Thomas and Scalia in three of their dissents during Thomas’s first year on the Court. Scalia’s own views, once feared as likely to spread to impressionable colleagues, are now somewhat tainted by the fact that he is able to win no trusty ally on the hard cases but Thomas.

Stephen Carter, who served as a clerk to Thurgood Marshall, notes that the superbly qualified Marshall, a repeatedly successful litigant before the Court, was submitted to the most humiliating and racist questioning during his confirmation hearings. It is, perhaps, some measure of increased racial sensitivity that people were afraid to ask humiliating questions of Thomas, even when his record called for pointed questioning. This may reflect the sort of progress Murray Kempton hailed when Sonny Liston proved that he did not have to be “a credit to his race” in order to win the heavyweight championship of the world. Joe Louis had set a standard of graciousness that could not be maintained forever:

The Negro heavyweights, as Negroes tend to do, have usually given that sense of being men above their calling. Floyd Patterson sounded like a Freedom Rider. We return to reality with Liston. We have at last a heavyweight champion on the moral level of the men who own him.42
You have participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges of immunity clauses. You have referred to Lewis Lehrman’s article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum, absent some very clear consideration of Roe v. Wade….
  1. 31

    F. Lee Bailey wrote of Specter’s claim: “No lawyer reading the record of these proceedings would even consider, on any objective basis, that a case of perjury could be made against Hill without some much more compelling evidence.” ABA Journal, January 1992, p. 49. 

  2. 32

    Thomas told the committee: “On my current court, I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load … I can walk in their shoes, and I can bring something different to the Court.” And, later: “I don’t know of any judge who could look out the back window of our courthouse and see bus load after bus load of young black males and not be worried …” (Thomas Hearings, Part 1, pp. 260, 480). Yet when Chief Justice Rehnquist and six other judges found it was “cruel and unusual punishment” for a prisoner to be beaten by guards so that his teeth were loosened and his denture cracked, Thomas wrote in dissent that “forcibly keeping prisoners in detention is what prison is all about.” So much for walking in prisoners’ shoes. See US Supreme Court Reports 117L Ed 2d, Hudson v. McMillian (1992), p. 178. 

  3. 33

    Thomas used his concurrent opinion in Holder v. Hall to go far beyond the case in question, calling the Court’s previous voting-rights decisions those of “a centralized politburo appointed for life to dictate to the provinces the ‘correct’ theories of democratic representation. …” In doing this, he dismissed the stare decisis principle so sweepingly as to prompt four justices (Stevens, Blackmun, Souter, Ginsburg) to file a separate opinion criticizing his rejection of the principle (which he had told the judiciary committee he would hold in high regard). See US Supreme Court Reports 129L Ed 2d, pp. 689, 715, 729. 

  4. 34

    Scalia joined all the other justices but Thomas in Dawson v. Delaware (1992) against the use of membership in the Aryan Brotherhood to influence a prisoner’s sentencing. The others did not want to punish belief, as had been done with members of the Communist Party. Thomas said membership in Alcoholics Anonymous was used to show good character, so membership in the Aryan Brotherhood could indicate bad character. He said AA was an indication of “abstract beliefs,” like the Aryan Brotherhood—though the former is a recommended action program of rehabilitation. See US Supreme Court Reports 1171 Ed 2d, p. 323. 

  5. 35

    Thomas Hearings, Part 2, p. 56. 

  6. 36

    Ruth Morris, “Justices Souter, Thomas,” The Washington Post, July 5, 1992. 

  7. 37

    I’m going to be here for 40 years. For those who don’t like it, get over it.” See Joan Biskupic, ” ‘I Am Not an Uncle Tom,’ Thomas Says at Meeting,” The Washington Post, October 28, 1994. 

  8. 38

    For the important role of Arch Parsons, see Timothy H. Phelps and Helen Winternitz, Capitol Games (Hyperion, 1992), pp. 6-7, 17, 74. 

  9. 39

    E. J. Dionne, Jr., “On Once and Future Supreme Court Nominations,” The Washington Post, June 19, 1992. 

  10. 40

    Christopher Edley, of the Harvard Law School, told the committee: “The background determinism that is suggested by the fact that he came from Pin Point and therefore will act in a special way on the Court seems to be counter-factual.” Thomas Hearings, Part 2, p. 31. 

  11. 41

    Christopher E. Smith, Critical Judicial Nominations and Political Changes (Praeger, 1993), pp. 61-67. 

  12. 42

    Murray Kempton, America Comes of Middle Age (Little, Brown, 1963), p. 62. 

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