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Setting the Record Straight By: Harold Johnson
FrontPageMagazine.com | Thursday, March 24, 2005

Here’s a Gallup poll I’d like to see: Who has higher name recognition today – Anita Hill, who backstabbed her former boss and mentor Clarence Thomas at his Supreme Court nomination hearings 14 years ago, or Peggy Hill, Hank Hill’s wife on the Fox Network animated comedy “King of the Hill”?

You don’t need a formal survey to know that Anita Hill’s star has set. The commentary that has greeted Atlanta Journal-Constitution reporter Ken Foskett’s new biography of Clarence Thomas, Judging Thomas, shows that even the chattering classes no longer have use for the woman to whom they once lit votive candles. Forty of Foskett’s 339 pages are devoted to the stink bomb that Hill lobbed into the Senate hearings on Thomas’ nomination. But the typical review of his book treats her sexual harassment allegations as a tired side story at most; the focus instead is on Thomas’ judicial philosophy – and how it can, or cannot, be squared with the remarkable up-from-poverty saga that Foskett readably recounts.


New York Times reviewer Dahlia Lithwick doesn’t even mention Hill, and devotes less than a sentence to the smack-down match that was the nomination fight. For Lithwick – someone who is a reliable gauge of the current orthodoxies of the law schools – the compelling questions are about Thomas the jurist; the underlying assumption is that this is a man, and a judge, to be taken seriously. She wants to know “how Thomas’s story ends in Thomas’s jurisprudence” – how, for instance, “did a person so obviously talented and ambitious, but who so obviously also benefited … from affirmative action, become the court’s most ardent advocate of absolute color blindness in the law?” On this count, she finds Foskett’s just-the-facts, Freud-free reporting unsatisfying – as if heavy psychologizing is required to discover why a successful black man would resent programs that stigmatize black success stories as “affirmative action” success stories. (More on the Foskett biography below.)


We were once assured that Anita Hill’s charges would be Clarence Thomas’ albatross until the end of his days. That liberal hope evaporated midway through the Clinton presidency. When the feminists who were outraged over Hill’s claims about naughty comments in the workplace suddenly took up spears in defense of a politically liberal president accused of major-league harassment, the gig was up. “A little sunlight is the best disinfectant,” Supreme Court Justice Louis Brandeis famously commented. Never more so than when it exposes towering hypocrisy.


But even if Bill Clinton had never been given a pass by warriors in the “women’s movement,” Clarence Thomas was fated to have the last laugh (and a deep, hearty one it is, as anyone who has heard it can attest). His opinion-writing on the bench is too rich, many-layered and downright interesting to allow serious legal scholars either to dismiss him or to diss him.


“He has become a judge through and through,” Drake University Law Professor Thomas Baker said in 2001. “Respect can be earned,” echoed star Supreme Court reporter Tony Mauro. So we have here an exception to the maxim that a Republican-appointed judge can earn establishment applause – “strange new respect,” in Thomas Bethell’s coinage – only by acting like a Democrat-appointed judge.


The turnaround in academic perceptions was signaled in 1999 with the publication of “First Principles: The Jurisprudence of Clarence Thomas,” by legal scholar Scott Gerber. Previous books about Thomas had been obsessed with the pyrotechnics of the Senate confirmation hearings. Gerber moved on from all that – as have most of the Thomas-focused books since.


With both a Ph.D. and a J.D. from the University of Virginia, Gerber – now on the law faculty of Ohio Northern University – has made the Declaration of Independence, and its place in American law, a specialty. It was inevitable, then, that he would turn to Clarence Thomas’ Supreme Court opinions, because Thomas is the first justice in at least sixty years to systematically employ the Declaration – and its assertion of universal human rights – as a lens through which to judge statutes and construe the Constitution.


Gerber’s most important contribution was to explode the lazy stereotype that painted Thomas as one-dimensional “conservative” – a “clone of Scalia,” as one columnist condescendingly put it. Gerber recognizes that Thomas’ independence from other justices, both liberal and conservative, is tangible and deep.


The party line for many conservatives goes under the banner of “strict construction.” This school fixates exclusively on the wording of the Constitution: If a liberty can’t be found written down, it has no claim on our conscience.


What about broader concepts of morality? Judges should not invoke them because, as conservative icon Robert Bork has written, any system of “moral and ethical values has no objective or intrinsic validity of its own.”


This radical skepticism is not just a bloodless formula for confronting questions of human justice; it is also a sure loser in any battle for the hearts of Americans, who have been raised to believe that their nation is dedicated to equality and freedom. Indeed, after Bork’s Supreme Court nomination was killed, Sen. Joseph Biden was able to score rhetorical points by asserting that, contrary to what Judge Bork seemed to have implied, “I have certain inalienable rights because I exist, [not] … because my government confers them on me.”


As Gerber highlights, Clarence Thomas rejects the moral relativism of some conservative legal theorists, propounding a different “originalist” approach – one that is guided by the Constitution’s text, but expounds it in light of principles beyond the text. Thomas would insist that these “higher law” principles were part of the Founders’ philosophical framework – indeed, the Founders made them explicit in the Declaration – so they must be part of any “originalism” that is intellectually honest.


Thomas’ most celebrated use of the Declaration as an interpretive guide was in his concurrence in the 1995 affirmative action case Adarand Constructors, Inc. v. Pena:


“There can be no doubt that the paternalism that appears to lie at the heart of this [affirmative action] program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).”


If Gerber has a problem with Thomas’ work – and he does – it is that (as Gerber sees it) Thomas does not deploy Declaration principles as broadly and consistently as he should. Gerber discerns a two-track approach – a resort to higher law (“liberal originalism,” as Gerber calls it) in the civil rights sphere, but a conventionally conservative reliance on the text (“conservative originalism”) in other areas. The author clearly implies that political convenience is at play – that natural law is left on the shelf when it would not lead to the result that Thomas desires.


But Gerber’s own exposition of Thomas’ opinions undermines this thesis. In those cases where Thomas is satisfied to hew to the Constitution’s language and legislative history – without reference to grand thematic principles – the Constitution’s words, and the history that informs them, tell their own story plainly enough. Consider Thomas’ controversial dissent in Hudson v. McMillian (1992), where he contended that beatings by prison guards were not actionable as violations of the Eighth Amendment’s ban on “cruel and unusual punishment” – although they can be punished under ordinary tort-law principles. Gerber grants the accuracy of Thomas’ reading of the Amendment’s background and history. What seems to frustrate him is that Thomas did not disregard the history in the name of a “natural law” that, in this case, would be at odds with the Founders’ understanding of natural law.


Gerber hints at similar frustration over Thomas’ calls for scaling back Washington’s regulatory reach. In United States v. Lopez (1995) (invalidating the Gun-Free School Zones Act of 1992 as an unconstitutional attempt by Congress to legislate control over public schools), Thomas’ concurrence stuck exclusively to the “text and history” of the Commerce Clause, as Gerber notes. Citing extensive source materials, Thomas pointed out that “interstate commerce” was a far narrower concept for the Founders than for modern courts, which have used it to give the federal government a limitless reach into our lives. But while Thomas’ approach here could be called “literalist,” in fact it harmonizes with his view of natural law; even before his elevation to the High Court, he was stating in speeches that the moral law is “the best defense of limited government” – and best defended by limiting government – because only when government is kept in check can people be assured of elbow room to assert their rights. In sum, Gerber probes Thomas’ writings more intelligently than earlier commentators, but an even deeper analysis (taking some of Gerber’s own insights as a point of departure) will find an essential cord of consistency where Gerber finds contradiction.


What are the personal traits and personal experiences that have shaped Clarence Thomas’ jurisprudence? Dahlia Lithwick to the contrary, Foskett’s Judging Thomas offers answers for those able to derive commonsense conclusions from straightforward, chronological reporting.


Foskett travels back to Thomas’ roots: To Liberty County, Georgia, in the early 1830s and a family of slaves that was broken up when an owner bequeathed them among his five children.


Next we learn again about Thomas’ gruff grandfather, Myers Anderson, who raised Thomas and his brother after their father disappeared and their mother (Myers’ out-of-wedlock daughter) decided that child raising wasn’t for her. Thomas has made his grandfather’s maxim his own: “Old man ‘can’t’ is dead. I helped bury him.”


Thomas attended segregated parochial schools. The nuns, whom he still thanks, taught him his three Rs; lighter-skinned black kids taught him discrimination, calling him “ABC: America’s Blackest Child.”


At Holy Cross College, his leadership qualities – and steely spine – were on display when anger and tension were highest. Several black students were facing expulsion for interfering with corporate recruiters (as an anti-war statement), and the talk at the Black Student Union was about shutting down the campus. “That doesn’t make any sense, man!” boomed Thomas. His idea: Warn administrators that blacks would quit the school en masse if the protesters were thrown out. The strategy was adopted – and it worked.


Besides the example of his grandfather, some seminal episodes prodded Thomas rightward and fueled growing disgust with policies of race-based favoritism. Most importantly, there was his reading of conservative political writers while at Yale Law School, and his rejection by blue-chip law firms on graduating. He suspected that they assumed that, as a black man, his way had been eased by softened standards and low expectations.


Ambivalence about “civil rights” jobs made him hesitate before joining the state attorney general’s office in Missouri and, later, the federal Equal Employment Opportunity Commission as chairman. But his work ethic made him shine wherever he landed; Foskett is particularly complimentary of Thomas’ success in squeezing more effectiveness from EEOC. He also exhibited a restless intellectual curiosity, hiring aides – such as Professor Ken Masugi, one-time student of political philosopher Leo Strauss – who would help him explore the Western Canon and the way thinkers from Aristotle to Locke had contributed to American principles.


The Supreme Court confirmation trauma left him scarred – but also helped thicken his already thick skin, confirming his resolve to be his own man and not to curry favor by trimming principles. The Clarence Thomas who emerged from that grim episode – and from his life challenges up to that time – is a man with a stout heart and none of the desire for admission to swank social circles that has compromised so many jurists and public officials.


I have quoted before, for FrontPageMagazine readers, Thomas’ words to the American Enterprise Institute in 2001: “Finding the right answer is often the least difficult problem. Having the courage to assert that answer and stand firm in the face of constant winds of protest and criticism is often much more difficult.”


Citing Alexander Hamilton, Thomas said judges must be people possessing “an uncommon portion of fortitude.” Unfortunately, he accurately observed, too many people in public life “show timidity today precisely when courage is demanded.”


For those who want a clear, concise account of Thomas’ lifetime road to fortitude, Foskett’s book is recommended reading. For those who want a scholarly introduction to how that fortitude exhibits itself on the Supreme Court, Gerber offers guidance. Thomas’ opinions themselves, however, are the best reading of all: A testament to courage and a commitment to timeless truths.

Harold Johnson is an attorney with the Pacific Legal Foundation.

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