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Jami FloydBack to OpinionJami Floyd

Clarence Thomas and the right to remain silent

Supreme Court Justice Clarence Thomas addressed the Federalist Society in Washington in 2007. Photo: AP/Charles Dharapak

Everyone is talking about Supreme Court Justice Clarence Thomas: The five-year anniversary of his last question from the bench, the disbarment complaint filed against him in Missouri last week, and just Friday, new allegations by a former girlfriend, allegedly confirming Anita Hill’s story.

All of which brings us back to the confirmation hearings of 1991; for none of these new attacks address the bottom-line question: Should Clarence Thomas have been named to the Supreme Court in the first place?

That is the question from which we veered, two decades ago, so distracted were we by what came to be known as “The Anita Hill Question.” By the time we reawakened to the underlying inquiry, the point was moot; Thomas was, and will be, a justice. For life.

My feeling at the time of his nomination — before Anita Hill surfaced — was that Thomas was not qualified for the post, not because of anything Hill alleged, but because Thomas had not yet proven himself a jurisprudential thinker of the caliber required for service on the U.S. Supreme Court.

But, Thomas was a black man in America, and we Americans were afraid to call it as we saw it. African-Americans were divided over whether to claim him as one of our own. Our division arose from color affinity, pride and the fear of losing our one coveted seat on the nation’s highest court. Some chapters of the NAACP even broke from the national organization over the Thomas issue. White folks, especially those on the Senate Judiciary Committee, were in an even less tenable situation — how to call into question the qualifications of an African-American nominee and not appear racist in doing so.

It was a question committee members would never have to answer, however. The proceedings suddenly were sidelined by the Hill allegations — that Clarence Thomas had made unwelcome sexual comments while she was working for him as a young lawyer, first at the Department of Education and later at (of all places!) the Equal Employment Opportunity Commission (EEOC). Instead of a rigorous review of the nominee’s intellectual preparedness, now we were talking about sex.

Game change.

Timothy Phelps is the reporter who broke the story. Phelps was doing his job, what any good journalist would have done, reporting new facts he’d uncovered. Nevertheless, he has been accused of liberal bias ever since.

But Hill’s allegations were the best thing that could have happened to Clarence Thomas in that hearing room, and across America. The Anita Hill Question distracted the Judiciary Committee and the public from the underlying issue at hand – whether Clarence Thomas was qualified for the job.

Political pundits who focus on Thomas’ lack of questioning prowess, activists who file disbarment petitions about Virginia Thomas’ financial disclosure forms, and those who would now rehash the old sexual harassment complaint that failed to undermine his credibility the first time around are all missing the critical point.

Clarence Thomas will sit on the bench for life. Let us not continue to be sidetracked from the fundamental issue: the nature and quality of his jurisprudence.

The first President Bush nominated Thomas to succeed Thurgood Marshall. As such, Thomas is only the second African-American to serve on the court. By any account, his story is impressive. He was born in 1948 in rural Georgia and overcame extreme racism, poverty and many other obstacles to be educated at Holy Cross and Yale Law School.

In 1974, he was appointed an assistant attorney general in his home state. He later practiced law and served as a legislative aide to then-Missouri Senator John Danforth. In 1981, President Reagan appointed him assistant secretary for civil rights at the Department of Education and in 1982 moved Thomas over to the EEOC where he served as chairman until President H. W. Bush nominated him for a seat on the D.C. Circuit Court of Appeals.

Thomas had served there for only one year and four months when Bush cherry-picked him to fill Marshall’s seat.

But was he too green?

The Senate Judiciary Committee was drilling down on that very question when someone leaked an interview the FBI had conducted with Anita Hill on an entirely different matter. Instead of questions about Thomas’ intellectual readiness to serve, we were suddenly talking about pubic hair on coke cans, “Long Dong Silver” and high-tech lynching. The hearing became about race, sexual harassment and feminism — all critically important issues but not the primary one in contention.

Conservatives who would suggest that my criticism of Thomas is purely ideological should note that I have no similar criticism of Justice Antonin Scalia. Whatever my criticism of Scalia (whom I have met many times), his underlying qualification for the seat is not among them. Not only was Scalia deserving of the post when nominated in 1986, after four years on the D.C. Circuit, but he has more than carried his intellectual weight ever since.

Of course, intellectual distinction is only one criterion for judicial appointments; the other, unfortunately, has become legal orthodoxy. Justice Thomas is a strict constructionist when it comes to the U.S. Constitution.

Strict construction requires a judge to apply the text only as written. Judges like Thomas avoid drawing inferences and focus only on the text of the Constitution itself. It is a conservative view because it disallows for further reading of rights and liberties into the Constitution when they are not expressly written there.

That Thomas clings staunchly to this approach is enough to justify his place on the court for most conservatives.

By comparison – and if intellectual distinction were the only criterion – the recently retired Justice David Souter had a more distinguished academic, scholarly and professional resume than Thomas; yet, despite being a Republican appointee, Souter proved a disappointment for conservatives; Thomas has proved an unqualified (no pun intended) success.

For me, however, the real test of Thomas’ effectiveness as a jurist must be made after considering his opinions – his use of precedent, understanding of the Constitution and how often he has been given the lead in opinion for the majority. Anything else is just more of the same old character assassination.

That is why I cannot agree with race determinists who judge Thomas harshly solely because he has an opinion so radically different from the majority of African-Americans of his generation.  After all, a racist is someone who never sees the individual, who sees instead a member of a collective ethnic or racial group. Is this not what many of Justice Thomas’ critics hold against him – his radical departure from the collective to be an individual?

“The black people I knew came from different places and backgrounds — social, economic, even ethnic — yet the color of our skin was somehow supposed to make us identical in spite of our differences. I didn’t buy it. Of course, we had all experienced racism in one way or another, but did that mean that we had to think alike?” — Clarence Thomas, “My Grandfather’s Son,” 2008

The answer is no. Of course, we black people do not have to think alike.

Clarence Thomas the man is entitled to think whatever he wants, regardless of the color of his skin. But what about Clarence Thomas the judge?

While others may prefer to focus on the silence of the judge from the bench, the more salient point is the silence of his pen. Like the late Chief Justice Rehnquist before him, Chief Justice Roberts rarely assigns majority opinions to Thomas. Whether this is because of Thomas’ lack of intellectual heft (as his critics on the far left might like to assume) or because of his staunchly conservative views (my personal opinion) the result is the same: Thomas does not write for the majority very much because he cannot persuade a majority of justices to join him. And that renders him virtually ineffective as a jurist.

If we judge the jurist, the sheer extremity of his views hampers his ability to garner a majority to his opinions. Simply put, he is an ineffective justice at a time when justice calls for more.