Today is the anniversary of the first week Clarence Thomas ascended to the United States Supreme Court. He was sworn in on Monday, October 23, 1991, following a hotly contested nomination process which centered not on Thomas’ qualifications but on allegations of sexual harassment in the workplace.
Last term, Thomas marked another anniversary: Five years of silence from the bench - not a single question posed to counsel, in 1,825 days. Also last term, a former girlfriend emerged, allegedly to confirm Anita Hill's story, from all those years before; and a watchdog group filed a disbarment complaint against Thomas, claiming improper financial disclosure.
This fall, before the current term could even begin, twenty House Democrats asked for a federal investigation into the disclosure matter, charging that Thomas may have violated the court's ethics rules. And, Jeffrey Toobin, of The New Yorker, also sounded the alarm with, “Partners: Will Clarence and Virginia Thomas Succeed in Killing Obama’s Health-Care Plan?”
The New Yorker piece was certainly prescient. It ran on August 25; and just this month, the Obama administration asked the Supreme Court to hear a major case concerning the 2010 health care overhaul law. The development, which came unexpectedly soon, makes it all but certain that the Court will agree to hear one or more cases involving challenges to the law, with arguments by the spring and a decision by June – right in the middle of the 2012 presidential campaign.
Toobin is a long-time student of the Supremes. When he speaks, we should listen. And he is right to scold the Left for what has been, from the start, a simplistic assessment of Thomas as a do-nothing, write-nothing, say-nothing lackey of archconservative Justice Antonin Scalia. Toobin suggests that Thomas may turn out to be the sleeper justice, an ultra-conservative thinker who threatens to undermine any interpretation of the Constitution as a living, breathing, evolving document, through stealth, behind-the-scenes leadership.
If Toobin is right in his assessment, “[t]he implications of Thomas’s leadership for the Court, and for the country, are profound. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society.”
I have known Jeffrey Toobin for years, respect him immensely, and almost always agree with him. In this latest assessment of the court, I agree with my old friend, in part; there is a fundamental failure, to answer a bottom-line question: Is Clarence Thomas an intellectual to be reckoned with, on the court, and off? 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 judge’s qualifications - 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 Clarence 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.
Thomas was a black man in America, however; and Americans were afraid to call it as we saw it. Within the African-American community, we 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 coveted seat on the nation’s highest court.
Meanwhile, the rest of America, especially the white men on the Senate Judiciary Committee, were in an even less tenable position -- how to call into question the qualifications of an African-American nominee, yet not appear racist in doing so.
It was a question committee members would never have to answer, however. Suddenly (and mercifully for the senators), the proceedings were sidelined by Hill’s allegations that the nominee had made unsolicited sexual comments while she was working for him as a young lawyer, first at the Department of Education and later the Equal Employment Opportunity Commission at (of all places).
Instead of a rigorous review of the nominee's intellectual preparedness, now we were talking about a subject we could all get our minds around: Sex. The Anita Hill Question distracted the Judiciary Committee and the public from the fundamental issue at hand - whether Clarence Thomas was qualified for the job. (Hill, by the way, has a new book out this month, entitled “Reimagining Equality,” and had timed her book tour to coincide with the twentieth anniversary of the hearings.)
Political pundits who continue to focus on Thomas’s lack of questioning prowess, activists who file disbarment petitions about Clarence and Virginia Thomas’ financial disclosure forms, and ex-girlfriends who rehash the old sexual harassment complaint that failed to undermine his credibility the first time around, all continue to miss the critical point: The nature and quality of the justice’s jurisprudence.
By any account, his back-story is impressive. The first President Bush nominated then Judge Clarence Thomas to succeed Thurgood Marshall. Thomas is only the second African-American ever to serve on the court. He was born in 1948 in rural Georgia and overcame extreme racism, poverty and myriad other obstacles to be educated at Holy CrossCollege 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 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 chairman of the EEOC where he served until President H. W. Bush nominated him for a seat on the D.C. Circuit Court of Appeals.
This is where the question of qualification comes in, however. Thomas had served on the D.C. Circuit for only one year and four months, when Bush cherry-picked him to fillMarshall's seat. Was Thomas too green?
The Senate Judiciary Committee should have been drilling down on that very question when someone leaked the FBI interview with Anita Hill. Instead of questions about Thomas's intellectual readiness to serve, the conversation shifted to the bizarre public dialogue 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 issue in contention.
Of course, intellectual distinction is only one criterion for judicial appointments; the other, unfortunately, has become legal orthodoxy. Justice Thomas is, is a strict constructionist when it comes to the U.S. Constitution. Strict construction requires a judge to apply the text only as written. Once the judge has a clear meaning of the text, no further interpretation is required. 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 the further reading of rights and liberties into the Constitution where they are not expressly drawn there. That Thomas clings staunchly to this approach is enough to justify his place on the court for most conservatives.
The real test of Thomas’s effectiveness as a jurist, however, 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.
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, or because of his staunchly conservative views, the result is the same: Thomas does not write for the majority very often because he cannot persuade a majority of justices to join him.
Toobin and others suggest that, with more experience and with Roberts as Chief, “the Court will start to come to Thomas – that Thomas’ views are now being followed by a majority of the Court in case after case.” Only time will tell.
My own view is that the sheer extremity of Justice Thomas’ views continues to hamper his ability to garner a majority for his opinions. This renders him an ineffective justice. A great legacy on the nation’s highest Court requires a very unique blend of superior intellect and judicial temperament, one that only a few Americans in history have mastered. From the start, Clarence Thomas has demonstrated that he possesses neither.
Jami Floyd is the Managing Editor of The Global Game World Report. She is an attorney and award winning legal journalist and has covered the Supreme Court for ABC News and Court TV, as well as the nomination and confirmation process. During her political work for the Clinton administration in Washington DC, she had the good fortune to become acquainted with most of the sitting and retired Supreme Court justices, but has never had the pleasure of meeting Justice Thomas.