The Magazine

DOING JUSTICE

Clarence Thomas at the Supreme Court

Mar 8, 1999, Vol. 4, No. 24 • By JEREMY RABKIN
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Clarence Thomas understands "the politics of personal destruction." After President Bush nominated him to succeed Thur-good Marshall on the Supreme Court, liberals threw a fit. With no evidence of felonious conduct from a special prosecutor, Thomas's opponents had to make the most of a single he-said/she-said dispute about an alleged episode of naughty language in the workplace a decade earlier. But joined with an incredible torrent of personal vilification, it almost succeeded. Back in the "kinder, gentler" world of 1991, Thomas ended up with nearly as many senators voting to exclude him from the Supreme Court as recently voted to remove President Clinton from the White House.


The virtue of Scott Gerber's new study, First Principles, is that it puts in better perspective Thomas's whole career. Gerber has a Ph.D. in political science as well as a law degree, and on the whole, the plodding research methods of the former graduate student prevail in his book over the argumentative instincts of the lawyer. The bulk of First Principles is devoted to a case-by-case survey of Thomas's opinions in his first five years on the Supreme Court, allowing contemporary critics and supporters of these opinions to have their say, beside Gerber's own (usually quite measured) judgments.


But Gerber has sense enough to realize that an analysis of Thomas's performance on the Court -- especially one that tries as well to review the commentary of journalists and scholars on that performance -- cannot altogether abstract from the political context. "Polarized" and "controversial" do not capture the atmosphere in which Thomas has had to find his footing; "hate-filled" would be more apt.


Certainly, today's dispensation -- of "putting it behind us" and "moving on" after a Senate vote -- was not afforded him. Years after his confirmation, critics were still trying to prove that Anita Hill had told the truth in her charges against Thomas and that the man was therefore a harasser as well as a liar.


Subsequent "legal" commentary, purporting to analyze Thomas's legal opinions, continues to paint him as exceptionally despicable. Leon Higginbotham, a former federal appellate judge, denounced Thomas as the "moral equivalent" of the nineteenth-century justices who gave constitutional sanction to slavery and segregation. Time magazine published an essay castigating Thomas as the purveyor of "Uncle Tom Justice." And these were the more respectable accounts. Emerge, an African-American magazine aimed at a popular audience, caricatured Thomas on its cover as a grinning lawn jockey under the headline, "Uncle Thomas: Lawn Jockey of the Far Right."


One law professor wrote an attack on Thomas so nasty and ad hominem that it was rejected by the leftist scholar Randall Kennedy for his journal, Reconstruction. Among other things, the article speculated that Thomas had voted to overturn the conviction of a man charged with illegally purchasing child pornography because Thomas himself was an avid consumer of pornography. We know about this (as Gerber documents) because what was too nasty for a left-leaning opinion journal devoted to "robust, wide-open debate" was deemed quite suitable for an article in the New York Times (masquerading as a "news story" about Kennedy's refusal to publish the attack). But then the Times, in its own editorial voice, had already denounced Thomas as "the youngest, cruelest justice" for disregarding the newspaper's editorial line on what constitutes cruel and unusual punishment.


It would take a more acute and imaginative analyst than Scott Gerber to explain why all these champions of tolerance and equality were driven to such frenzied attacks on Clarence Thomas. Gerber is content simply to survey the commentary and inform the reader that the reactions of critics he identifies as "liberals" parallel those critics' political objections to Thomas's rulings.


The most charitable interpretation is that, having failed to keep Thomas off the Court, liberals have sought to isolate and delegitimize him through a calculated campaign of personal abuse. They did this (one might charitably suppose) because Justice Thomas, as a highly visible and articulate black man with conservative views, threatened to discredit the premise of liberal racialist rhetoric -- which declares that anyone who "knows what it is like to be black" must support liberal policies.


Less charitably, one might conclude that many of Thomas's critics actually believe that skin color determines political belief and therefore really do believe that Thomas's conservative rulings are a conscious fraud or an angry reaction to his confirmation experience.