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Judging the Judge

July 29, 1998 at 12:00 AM EDT
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JIM LEHRER: Elizabeth Farnsworth has the Clarence Thomas story.

ELIZABETH FARNSWORTH: Saying he had come to assert his right to “think for himself,” Justice Clarence Thomas today addressed the nation’s largest organization of African-American attorneys and judges. That group, the National Bar Association, is holding its annual convention in Memphis, Tennessee. It did not endorse Thomas’s 1991 appointment to the Supreme Court. Today’s speech was controversial from the start. The invitation to Thomas from a panel of judges was denounced publicly by some members, but Thomas refused to cancel. And the invitation was never withdrawn. Here are excerpts from Justice Thomas’s speech today.

CLARENCE THOMAS, Supreme Court Justice: I’ve found during my almost 20 years in Washington that the tendency to personalize differences has grown to be an accepted way of doing business. One need not do the hard work of dissecting an argument. One need only attack and thus discredit the person making the argument. Though the matter being debated is not effectively resolved, the debate is reduced to unilateral pronouncements and glib but quotable clichés.

I for one have been singled out for particularly bilious and venomous assaults. These criticisms, as near as I can tell, and I admit that it is rare that I take notice of this calamity-have little to do with any particular opinion, though each opinion does provide one more occasion to criticize. Rather, the principle problem seems to be a deeper antecedent offense. I have no right to think the way I do because I’m black.

Though the ideas and opinions themselves are not necessarily illegitimate, they’re held by non-black individuals, they and the person enunciating them are illegitimate if that person happens to be black, thus, there’s a subset of criticism that must of necessity be reserved for me–even if every non-black member of the court agrees with the idea or the opinion. You see, they are exempt from this kind of criticism precisely because they are not black.

It pains me deeply-more deeply than any of you can imagine-to be perceived by so many members of my race as doing them harm, all the sacrifice, all the long hours of preparation were to help, not to hurt. But what hurts more, much more, is the amount of time and attention spent on manufactured controversies and media side shows when so many problems cry out for constructive attention.

I have come here today not in anger or to anger, though my mere presence has been sufficient, obviously, to anger some, nor have I come to defend my views, but rather to assert my right to think for myself, to refuse to have my ideas assigned to me, as though I was an intellectual slave.

ELIZABETH FARNSWORTH: Now, two views on Justice Thomas and the African-American legal community. Leon Higgenbotham is the former chief judge of the 3rd U.S. Circuit Court of Appeals in Philadelphia. And Stephen Smith clerked for Justice Thomas and is now in private practice in Washington.

Judge Higgenbotham, as a key critic of Justice Thomas, what was your reaction to the speech today?

CHIEF JUDGE LEON HIGGENBOTHAM (Ret.), U.S. Circuit Court of Appeals: It was precisely what I thought it would be. He talked a great deal about civility, but he didn’t talk about the devastating consequences, his juris prudence has caused. Cleo Fields is now no longer in the United States Congress because Justice Thomas joined four other justices in a series of cases, which have caused a significant or could cause a significant diminution of people in Congress.

ELIZABETH FARNSWORTH: And Judge Higgenbotham, were you surprised that he gave the defense that he gave of his. He said he didn’t come to defend himself, but that he said what he said.

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): He had no other defense. What is significant about Justice Thomas is what he did not say. As an example, Dean Pollack of the Yale Law School says that Justice Thomas got into Yale Law School on an affirmative action program.

Everyone seems to concede that fact, but now Justice Thomas opposes affirmative action, and the fundamental question I guess among minority lawyers, is it-why is it that he opposes his project, which was so good for him-to put him in the mainstream, and, therefore, he wants to preclude that option to others.

ELIZABETH FARNSWORTH: Stephen Smith, I know you aren’t in Memphis, but what is your reaction to the excerpts we just ran from the speech?

STEPHEN SMITH, Former Clerk for Justice Thomas: Again, it makes me proud of the justice again, people like Leon Higginbotham tried to bully him and to silence him, and to try to get him not to speak, but demonstrating the kind of character he has.

He stood his ground, and I thought presented a brilliant speech. He was very-without being preachy-he was confident, assertive of his rights to speak, and the only devastating consequences that his juris prudence might have are for people like Leon Higginbotham, who live on keeping black people to think that people are-that white people are racist.

ELIZABETH FARNSWORTH: Okay. I’m going to come back to some of these arguments in a minute, but Judge Higginbotham, you opposed Justice Thomas, the invitation to Justice Thomas to speak today. Why?

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): Mr. Smith starts off wrong again. My letter never said that he should be disinvited. It’s not one sentence, if you take the second paragraph and you have it-

STEPHEN SMITH: That’s simply false.

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): I take no position on that.

STEPHEN SMITH: That’s absolutely false. He said that allowing him to speak was a mistake-

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): No, please, Mr. Smith, will you let me-

ELIZABETH FARNSWORTH: Mr. Smith-

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): –give my response first. And I’ll listen to you.

ELIZABETH FARNSWORTH: Judge Higginbotham, go ahead. You did say it was like inviting George Wallace to speak after he’d given his remarks at the doorway, right?

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): Yes. But I didn’t say that he should not speak, and I asked for the opportunity for a panel to go on and put a substantive analysis of Justice Thomas’s impact on the Supreme Court. And that’s what we did. I’m delighted that he was there. And I think that you should listen to the tape and hear the people who critiqued him, and I think they may have a different view than Mr. Smith has about what was the excellence of Justice Thomas’s-

STEPHEN SMITH: Leon-

ELIZABETH FARNSWORTH: Excuse me, Mr. Smith, one minute. Judge Higginbotham, just so I know, what did you mean when you said it makes no more sense to invite Clarence Thomas than it would have for the National Bar Association to have invited George Wallace for dinner the day after he stood in the school house door and shouted, “Segregation today and segregation forever?” I just want to get clear what you felt about the invitation.

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): Because Justice Thomas-if you take the Voting Rights case-has voted consistently against minority interests. And to that extent, it made no sense to invite him, just like it would not make sense to invite Governor Wallace, who had taken these positions on segregation, or had taken these positions on-or Faubus had taken these positions on Arkansas.

STEPHEN SMITH: Well, Elizabeth, can I have a chance to-

ELIZABETH FARNSWORTH: Stephen Smith, yes, go ahead now, sorry.

STEPHEN SMITH: I’d like to respond to that-Leon’s very characteristic, and he knows his audience well. The fact is the facts are contrary to what he’s saying now, just as Leon did not invite Governor Wallace over for dinner the day after he stood in the schoolhouse doors-so too he was trying to put pressure, keep members of the National Bar Association to disinvite Justice Thomas-they had the fortitude to stick to the invitation.

He delivered a great speech and so forth. I mean, again, Leon knows that people have jobs and they don’t have time to read opinions. The fact is the Voting Rights cases are absolutely consistent with what Justice Marshall and everybody else but him and the leadership today stands for, and that is equal opportunity and, in fact, look around the country.

Blacks are-in spite of the Supreme Court’s decisions limiting the use of majority minority districts-as Cynthia McKinney down in Georgia was re-elected from her non-racially gerrymandered district. There are other black members of Congress, including J.C. Watts. Cleo Field, as I recall, is the only one who’s lost his seat.

ELIZABETH FARNSWORTH: Judge Higginbotham, what is your response to what Justice Thomas said? He said, ‘I have no right to think the way I do-my critics.” He’s saying his critics think that because he is black. Is that true that he doesn’t have-

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): I don’t take that position. He’s got a right to think whatever he wants to, but he does not have a right to be free of critique. Now, when he says that Justice Thomas’ position is the same as Justice Marshall, you can’t find one constitutional law scholar who would say that Thomas’ position on the Voting Rights cases was the same as Marshall, and more important, there were six Supreme Court justices who have disagreed on this issue, and I’m talking about Justice Brennan, Justice Blackmun, Justice Souter, Justice Breyer, Justice Ginsburg, Justice Stevens, all of these justices at various times were on the other side but the alumnus of Penn Point, Georgia took the opposition position.

So it’s not a question of Justice Thomas on one side with everyone else. The majority of African-American jurists disagree. The vote was-and Mr. Smith does not want to use the figures-the vote was twelve to two to disinvite him so it means that when they learned that he’d been invited, twelve of fourteen justices voted that the invitation should be withdrawn, so I think once again I can’t get them to do the statistics.

I ask you to just take my letter, which I think you have a copy-look at my second paragraph or look at Judge Hall’s and then I would be delighted-anyone-to determine whether Mr. Smith is accurate or whether I am.

ELIZABETH FARNSWORTH: Stephen Smith, why after seven years on the Supreme Court does Justice Clarence Thomas still evoke such controversy among African-Americans and especially the legal community?

STEPHEN SMITH: Well, Elizabeth, it’s unfortunately because there are many people in the self-appointed black leadership like Leon who don’t think that Justice Thomas has a right to espouse views that are shared by a majority of the court, which he failed to point out simply because of his race.

When is the last time Leon wrote a letter an open letter criticizing Justice Scalia or Justice Kennedy or Justice O’Connor, all of whom have signed on along with Justice Thomas to all the decisions he now criticizes. The fact is they have a “get out of jail free” card, because they are not black, and I think that’s loathsome. The Washington Post correctly criticized Leon and his colleague, Judge Clemmon, for example, for adopting that racist view, it’s very racist. Justice Marshall did not agree with it.

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): I’m having trouble hearing you, but you were-

STEPHEN SMITH: –probably not have agreed with me.

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): All I’m saying is that if you say I haven’t criticized other justices and my article in the Fordham Law Review, I have about a 75-page article critiquing Shelby Reno, so that as Judge Foster suggested, black is the only-

STEPHEN SMITH: Leon, when’s the last time you protested a Scalia speech? Leon, when’s the last time you protested a speech by Scalia, O’Connor, or Kennedy?

ELIZABETH FARNSWORTH: Judge Higginbotham, is it the case that many people and perhaps you share this view that there’s one African-American seat on the Supreme Court and it should be-it should go to-

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): No, no.

ELIZABETH FARNSWORTH: –somebody who thinks like Justice Thurgood Marshall thought, has a more liberal different point of view?

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): No. This is not an issue of a black seat on the Supreme Court. This is a question of a fair vote on the Supreme Court.

ELIZABETH FARNSWORTH: Pardon.

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): This is not an issue of a black vote on the Supreme Court. This is an issue of a fair vote by justices.

ELIZABETH FARNSWORTH: Stephen Smith, do you think that this debate and the fact that this invitation was not rescinded and that Justice Clarence Thomas made the remarks he made, does it signal something new in the whole debate in the African-American community over the justice?

STEPHEN SMITH: Yes. I think Leon and others like him are like a little boy with his finger in the dike.

You can only hold back the ground swell for so long, and I think for all of their protests, for all of his open letters, for all of the lobbying and back door-behind the closed doors-NBA-the National Bar Association-Justice Thomas’s view still came out, they still saw the light of the day, and that’s what Leon and people like him are so afraid of, that for once we’ll have a very honest debate within the black community-are the types of positions they espouse, and they’re left to defend their spotty, horrible track record over the last 30 years.

Having said that, I give them credit for achieving the civil rights legislation. Justice Thomas would do the same, but it’s like Janet Jackson said, what have you done for me lately, and the answer is not much.

ELIZABETH FARNSWORTH: Judge Higginbotham, your response to that.

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): They haven’t done much because if you look at the University of Texas now, the number of students in the 1998 entering class dropped from about 34 to 4, and that occurred in terms of African-Americans because of a whole rationale which Thomas is a part of and which the Hopwood case represents. If you had the Baake case, Justice Powell of Virginia understood this problem while Justice Thomas does not.

STEPHEN SMITH: Well, then why did Justice Powell not get a single-

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): I can’t hear you.

STEPHEN SMITH: Why did Justice Powell not get a single vote on his diversity rationale in Baake?

ELIZABETH FARNSWORTH: Gentlemen-

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): I’ll tell you what Baake-

ELIZABETH FARNSWORTH: I’m going to have to interrupt. I’m sorry. We have to go now, but thank you both very much for being with us.

STEPHEN SMITH: Thank you, Elizabeth.

CHIEF JUDGE LEON HIGGINBOTHAM (Ret.): I look forward to the–