Doubting Clarence Thomas

Twenty years later, a Harvard Law professor regrets not voicing his concerns.

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Twenty years ago this week, Clarence Thomas became a justice of the U.S. Supreme Court, taking over the chair vacated by "Mr. Civil Rights," Thurgood Marshall. Thomas' confirmation vote in the Senate, 52-48, was one of the closest in history and followed a bizarre confirmation hearing that was divided into two parts. The second was devoted to investigating lurid charges made by Anita Hill. She maintained that when Thomas headed the Equal Employment Opportunity Commission in the 1980s, he had sexually harassed her. 

That is the phase of the hearing that now occasions the most attention. It brings to mind horrid memories -- Thomas' success in using the specter of "a high-tech lynching" to win over public opinion; the effectiveness of his allies in circumscribing the introduction of evidence that would have significantly bolstered Hill's charges; the failure of Joe Biden, then the chair of the Senate Judiciary Committee, to get to the bottom of the whole sordid mess.

The initial, "normal" phase of the hearing, however, is also important to recall. This is the phase in which Thomas answered questions about his record as an attorney and judge, his understanding and assessment of various doctrines and his jurisprudential method and vision. 

I remember being ambivalent about opposing Thomas. I objected to his conservative politics. But I was unsure whether an all-out and successful effort to stymie his confirmation would ultimately lead to a better outcome. His replacement, I thought, would probably be white and worse. I remember thinking that there was some marginal symbolic benefit in having a black person on the court, even if that person often voted the wrong way. 

I remember thinking, too, along with others, that Thomas was unlikely to remain as aggressively conservative once he attained his goal. I even harbored the hope that he had been putting on something of an act in order to win the favor of right-wing sponsors, and that once he was safely ensconced in his seat with the insulation of life tenure, a more attractive persona would emerge.

On the other hand, I also remember having contradictory impressions of Thomas that were too painful to articulate, at least not publicly. One was that he was simply underprepared for the job and woefully lacking in intellectual achievement and even capacity.

Here, it is important for me to eschew the unearned and excessive deference all too frequently bestowed upon the justices. Typically they are not deep intellectuals. But most are at least better than average lawyers. Thomas' halting, confused, meager and ill-informed responses to questions showed him to be well below the analytical level of those he hoped to join on the court. But I felt inhibited from stating my impression for fear of giving aid to the anti-affirmative action crowd and those, still lurking, who look down upon all black lawyers.

Also present in the transcripts of the confirmation hearings of October 1991, however, are voices of those who did speak out against Thomas' confirmation and who thus proved themselves prescient in light of his terrible record -- a jurisprudence of reaction that makes him the most backward-looking facilitator of social injustice since James Clark McReynolds (1862-1946), one of the infamous "Four Horsemen" who sought to undo the New Deal. 

Erin N. Griswold, a former dean of Harvard Law School and former U.S. solicitor general, declared forthrightly that he saw no reason the Senate ought to confirm a nominee "who has not yet demonstrated any clear intellectual or professional distinction." The downside "is frightening," Griswold observed. "The nominee, if confirmed, may well serve for 40 years ... There does not seem to me to be any justification for taking such an awesome risk."

Rep. John Lewis (D-Ga.) confided that he had been "advised by some that [he] should not testify against [Thomas] because he is black." Repudiating that advice, Lewis contended that while "the color of [the nominee's] skin is not relevant ... his views and his qualifications are." Convinced that Thomas wanted to "pull down the ladder that he climbed up," Lewis begged his senatorial colleagues to nullify the nomination. 

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