Monday, July 27, 2009

Justice Clarence Thomas: The Son Also Rises

Although lost in recent news events after the initial burst of worshipful publicity, Judge Sotomayor will likely soon be seated in the Supreme Court well before its new term begins in October. This is a good time to remember that that the judge is hardly the only nominee with what the beltway echo chamber repetitively calls a "compelling personal story" (as we've mentioned, hypocritical Senate Democrats refused to allow the appeals court nomination of super-lawyer Miguel Estrada, a Honduran immigrant, to receive an up or down confirmation vote.)

The journey from rural and inner-city Georgia to the nation's highest court was no less compelling for Justice Clarence Thomas, who was nominated in 1991 to the Supreme Court at age 43 after 15 months of service on the D.C. Circuit. This remarkable, only-in-America, journey is chronicled in his riveting memoir, My Grandfather's Son, which we just had a chance to read.

The book's title derives from the fact that Thomas was primarily raised by his no-nonsense grandfather (and grandmother), who instilled in him among other things a strong work ethic and a philosophy of self reliance.

And as everyone knows, there was one huge difference between Thomas' confirmation experience and the how the current Supreme Court vacancy is being handled.

In contrast to the civil treatment afford Sotomayor, Thomas underwent severe grilling during the bitter and contentious hearings. And that was after his nomination dragged on for months over the summer and fall while the liberal attack machine and what he aptly calls the news media's "funhouse mirror" relentlessly worked overtime to sabotage his appointment--including but not limited to the Kafkaesque, 11th-hour allegations raised by Anita Hill, an ambitious former employee who nonetheless insisted on following Thomas from the Education Dept. to the Equal Employment Opportunity Commission.

If you recall, the controversy forced the Senate Judiciary Committee to reopen the hearings, and Thomas returned to the committee to publicly refute these allegation, which he famously termed "a high tech lynching.

His forceful, primetime testimony turned public opinion in his favor, and the Senate narrowly confirmed his nomination on October 15, 1991, several weeks after the court term began. (An interesting factoid from the book: Thomas was dogged by financial problems most of his life, and was still paying off his Yale Law School tuition when he joined the high court.)

How did Thomas wind up getting appointed by a Republican president? Although Thomas aligned himself with campus radicals in college, his views gradually began to change. Finally, in the fall of 1980, inspired by the presidential candidacy of Ronald Regan, he decided to change his voter registration to Republican:
It was a giant step for a black man, but I believed it to be a logical one. I saw no good coming from an ever-larger government that meddled, with incompetence if not mendacity, in the lives of its citizens, and I was particularly distressed by the Democratic Party's ceaseless promises to legislate the problems of blacks out of existence. Their misguided efforts had already done great harm to my people, and I felt sure that anything else they did would compound the damage. Reagan, by contrast, was promising to get government off our backs and out our lives, putting an end to the indiscriminate social engineering of the sixties and seventies. I thought that blacks would be better off if they were left alone instead of being used as guinea pigs for the foolish schemes of dream-killing politicians and their ideological acolytes. How could I not vote for a man who felt the same way?
During his difficult confirmation ordeal, Justice Thomas was sustained by family and close friends, his love of country, and his faith. Thomas describes his detractors in this way:
What [my friends] didn't understand was that my opponents didn’t care who I was. Even if they had wanted to know the truth abut me, it would have mad no sense to them, since I refused to stay in my place and play by their rules and was too complicated to fit in their simpleminded, stereotypical pigeonholes. In any case, I couldn't be defeated without first being caricatured and dehumanized. They couldn't deny that I had a loyal and loving family, so they found ways to use it against me; the couldn’t deny that I'd been born into rural poverty, so they cast doubt on everything I'd done since leaving home, twisting and belittling my escaped from the poverty and ignorance of my young years. Above all they couldn't allow my life to be seen as the story of an ordinary person who, like most people, had worked out his problems step by unsure step. That would have been too honest--and too human.
Interestingly, unlike the army of handlers and spin doctors that assist high-profile nominees today, Thomas was directly assisted by only a small group of dedicated helpers, led primarily by former federal judge Michael Luttig (who was not yet a judge at the time).

In one passage, Thomas talks frankly about his preparation for the confirmation hearings and his approach to judging:
Trying to review so many cases in the space of three months was like trying to cram for a final exam while being shoved around by an angry mob. It wasn't that I doubted my ability to master the material. I already understood the key cases and the legal concepts behind them perfectly well. But it's one thing to know a precedent and another one to think it through methodically, then apply it to specifically cases. Until he's gone through that deliberative process on a case-by-case basis, an open-minded judge can't predict how he will rule in any given situation. As for the matter of my judicial philosophy, I didn't have one--and didn't want one. A philosophy that is imposed from without instead of arising organically from day-to-day engagement with the law isn't worth having. Such a philosophy runs the risk of becoming an ideology, and I'd spent much of my adult life shying away from abstract theological theories that served only to obscure the reality of life as it's lived.
The abortion rights lobby among others aggressively opposed his nomination, assuming that he was pro life despite any public record either way. Despite the obsession from both the left and the right over abortion, it's perhaps fair to say that a lot of ordinary people are conflicted and have a great deal of ambivalence about the whole issue. And even some pro-choice individuals feel that Roe v. Wade was wrongly decided because there was no basis for federal intervention into a state matter. Perhaps if the court had steered clear of the case, abortion may never have been politicized in the first place. That being said, in his first round of testimony, eyebrows were raised when Thomas claimed that he'd never discussed Roe. That answer didn't seem plausible even for those watching at home who might otherwise be supportive of his nomination (since the Bork hearings, noncommittal, evasive answers by judicial nominees have, however, generally become the norm). But Thomas elucidates:
The fact was that I'd never been especially interested in the subject of abortion, and hadn't even read the decision until in turned up in one of Mike's [Luttig] many binders. In law school I'd been a self-styled "lazy libertarian" who saw abortion as a purely personal matter. Like most Americans I had mixed emotions about it, and I wasn't comfortable telling others what to do in difficult circumstances. The closest thing I ever came to talking about abortion at Yale was the course work I did on substantive due-process cases and the right to privacy, but Roe was handed down after I studied constitutional law, so it wasn't part of the curriculum. Of course I knew and understood the personal pain of those who had to choose between having a child or an abortion, but at the time I took the easy way out by remaining agnostic on the matter.
On Hill's allegations that nearly derailed his nomination:
I felt sure that I had never said or done anything to her that was even remotely inappropriate, but I knew that in Washington, what matters is not what you do but what people can be made to think you've done. I also knew from working with Anita that she was touchy and apt to overreact. If I or anyone else had done the slightest thing to offend her, she would have complained loudly and instantly, not waited for a decade to make her displeasure known. Of course, we'd disagreed sharply about politics--I remembered how she's said at our first meeting that she "detested" Ronald Reagan--and I'd found her political views to be both stereotypically left of center and uninformed. But I never allowed political differences with my subordinates at EEOC to stop me from working cordially with them, and Anita was no exception. Outside of purely political matters, the only thing about which we'd argued during the time we worked together was my refusal to promote her, and even that hadn't stopped me from helping her get another job.
The firestorm started when Hill's confidential statement was leaked to National Public Radio and a Long Island newspaper. Thomas writes:
On Sunday morning courtesy of Newsday, I met for the first time an Anita Hill who bore little resemble to the woman who had worked for me at EEOC and the Education Department. Somewhere along the line she had been transformed into a conservative, devoutly religious Reagan-administration employee. In fact she was a left-winger who'd never expressed any religious sentiments whatsoever during the time I'd known her, and the only reason why she'd held a job in the Reagan administration was because I'd given it to her. But truth was no longer relevant: keeping me off the Supreme Court was all that mattered. These pieces of her sordid tale only needed to hold up long enough to help her establish credibility with the public. They fell away as the rest of the story gained traction in the media, just as the fuel tank and booster rockets drop away from a space shuttle once it reaches the upper atmosphere. I was struck by the glaring difference in the way the media treated Anita and me. Whereas it was taken for granted that whatever she said had to be true; it was no less automatically assumed that anything I might say in my defense would be untrue.
It is important to note that in the exceptionally well documented book The Real Anita Hill, David Brock found no substance to Hill's flimsy, thinly corroborated sexual harassment charges. Although Brock has since changed his ideological stripes, to the best of our knowledge the information presented in the book has never been refuted. The Brock tome is not mentioned in the Justice's memoir.

In his remarks announcing the nomination, President G.HW. Bush said that the-then Judge Thomas was "the best qualified nominee at this time." That statement engendered a lot of skepticism, and even Justice Thomas admits that had doubts about it. Five years into his service on the high court, Justice Thomas had the opportunity to ask former White House advisor Boyden Gray about the president's statement:
He explained that the president had been looking for someone who was not only competent at doing the job but who had also been tested in political battle and this could be counted on not to cave under the pressure of a confirmation battle, or to change his views after being appointed to the Court. I definitely qualified on that score: I had spent a decade in the eye of the storm at EEOC and the Department of Education, and had never compromised on matters of principle. "It also mattered that your FBI file was very clean at least as FBI files go," he added. "Everything added up to make you the best-qualified choice."
If only the White House had vetted the David Souter appointment in the same way...

In any event, the confirmation battle is only a small part of the heartfelt, candid 289-page memoir. Even if you have ideological or jurisprudential disagreements with Justice Thomas (or you feel his rendition of events might be overly self-serving), you will find his American journey fascinating, including the harsh form of tough love administered by his grandfather that led to the Justice's iron-clad determination and career success but sadly created a rift between the two men.

To a certain degree, is it fair to say that the success of Clarence Thomas in rising to the pinnacle of the legal profession is on some level reflective of the spirit of every self-reliant American?

Click here for an unusually fair 60 Minutes interview with Justice Thomas shortly after his book was published.