Monday, August 01, 2016

Who Is Justice Clarence Thomas

By Eric Segall

This week at the Southeastern Association of American Law Schools Annual Conference, I will be leading a discussion group commemorating the 25th anniversary of the nomination of Justice Clarence Thomas. On this Blog, and in law reviews, I have been quite critical of Justice Thomas' constitutional law jurisprudence. For this post, however, I am going to (mostly) let the facts speak for themselves, and then at the end, ask a question about the appropriate boundaries of commentary by legal academics about Supreme Court Justices. 

As a caveat, I have no doubt that Justice Thomas treats all people he personally encounters, from law clerks to lawyers to friends to people who disagree with him, with warmth, respect and compassion.

Although we will likely never know the truth about Anita Hill's allegations of sexual harassment against Justice Thomas, we do know that the following exchange took place during Thomas' confirmation hearing in 1991. 

Senator LEAHY. "Have you ever had discussion of Roe v. Wade, other than in this room, in the 17 or 18 years it has been there?" [Justice Thomas graduated from Yale Law School in 1974, one year after Roe v. Wade was decided].

Judge THOMAS. "Only, I guess, Senator, in the fact in the most general sense that other individuals express concerns one way or the other, and you listen and you try to be thoughtful. If you are asking me whether or not I have ever debated the contents of it, that (sic) answer to that is no, Senator...." 
Senator LEAHY: "So you don't ever recall stating whether you thought it was properly decided or not?

Judge THOMAS. "I can't recall saying one way or the other, Senator."
We also know that Andrew Peyton Thomas' biography of Justice Thomas alleges that William Bradford Reynolds, Assistant Attorney General under Ronald Reagan, and a true conservative, said that "I know we [he and Justice Thomas] discussed [Roe]. I think that he thought little of Roe v. Wade. ... [F]rom a scholarly standpoint, we were talking about constitutional law, constitutional issues, and Supreme Court decisions. It was clear he didn't think much of it."

Despite media discussion of Reynolds' allegations, to the best of my knowledge he has never denied that this conversation took place. In any event, a Supreme Court nominee in 1991, almost two decades after Roe was decided, testified under oath that he could not recall ever debating the issue or ever saying whether he thought the decision was right or wrong. I think it is fair to suggest that between 1973 and 1991, the most debated constitutional law issue -- indeed, the most debated legal issue of any kind -- in the United States among academics, lawyers, and even the citizenry at large, was the correctness of Roe v. Wade. If Thomas was telling the truth, perhaps his nomination hearing should have gone a different way for that reason alone.

Justice Thomas' behavior on the Court might actually support his testimony that he could not recall ever expressing an opinion on Roe. As is well known, Thomas went almost ten years without asking a single question from the bench. Then, this year after Justice Scalia's death, he asked a single question, and went the rest of the term without speaking again. In the last 45 years, not a single Justice went one year, much less ten, without asking a question from the bench. Whether Thomas' reticence is due to his civility, or a belief that oral arguments are better if lawyers speak more than the Justices, or a lack of preparation, no one knows. But it is indisputable that he approaches oral arguments much differently than any other Justice in modern times.

Here are a few more facts about Justice Thomas. In 2011, he amended thirteen years of tax disclosure forms because he had failed to include his wife’s income on those forms as required by federal law. During that lengthy time period, his wife worked for the conservative Heritage Foundation and the Republican Leadership in the House of Representatives, among other right-wing groups. Justice Thomas said only that he had a "misunderstanding of the instructions" on the form.

On at least one occasion, Justice Thomas admitted to attending a political meeting for wealthy donors run by the Koch Brothers, wealthy supporters of conservative causes. Although a Court spokesperson said that Thomas only had a “brief stop by,” the advocacy group Common Cause alleged that Thomas' financial disclosure form said that the Federalist Society, a prominent conservative legal group, had reimbursed him for four days of  'transportation, meals and accommodations’ over the weekend of the retreat. Of course, many of the Justices attend meetings run by the liberal American Constitution Society and the Federalist Society, and other academic or pseudo-academic events, but it is unclear at best how many attend what are basically political fundraisers with no educational or academic links.

As of 2010, Justice Thomas had hired 84 law clerks. According to the New York Times, all but one had clerked for a lower court judge appointed by a Republican President. That same article quoted Justice Thomas as saying that he would not hire law clerks "who have profound disagreements with me....It is like trying to train a pig. It wastes your time and it aggravates the pig."

Turning to his judicial opinions, we all know about Justice Thomas' opposition to any form of affirmative action even though he has said that it was such a program that allowed him to attend Yale Law School. Leaving aside that there is persuasive evidence that the original meaning of the Fourteenth Amendment would have allowed racial preferences to assist African-Americans, thereby rendering all of Thomas' affirmative action decisions blatantly inconsistent with his oft-stated preference for originalism, his hurtful rhetoric in these cases is so extreme as to tarnish all who disagree with him as blatant racists and suggests that minority students at elite educational institutions across the country can't compete and succeed at those institutions.

In the first Fisher v. Texas case, Thomas went out of his way to argue that those defending the affirmative action program at Texas were making the same arguments used to support both segregation and slavery. In responding to those arguing that Texas' limited use of racial preferences lent to many good consequences, Thomas wrote that "Slaveholders [also] argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life." He also said that "in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today." These were not throwaway lines. Justice Thomas spent pages contending that pro-slavery and pro-segregation arguments tracked very closely the arguments made by modern proponents of limited racial preferences in university admissions.

Reasonable people can and do disagree about the pros and cons, and constitutional validity, of modern affirmative action programs. Can reasonable people think those in favor of such programs (like me) should be put on par with defenders of slavery and Jim Crow? Lest you think I am overstating what Justice Thomas said, here again are his own words: "The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists."

Justice Thomas has also spilled much ink arguing that African-Americans and Hispanics are "mismatched" at elite schools and would be much better off at less elite institutions. Here is a typical statement, again from the Fisher decision:

"Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates…. As a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where under performance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete."

Leaving aside the many factual problems with this notorious "mismatch theory," I have personally witnessed minority students react harshly to these and other similar comments by Justice Thomas (and I don't even teach at an "elite" school). One of their complaints is that as a matter of personal respectability and responsibility, Justice Thomas should at a minimum explain more deeply why he would deny to others the very benefits that were so important to his career (and which he accepted). Does he really think race played no role in President George Bush's nomination of him to replace, of all people, Justice Thurgood Marshall? To be clear, I am not accusing Justice Thomas of hypocrisy for accepting a benefit he now votes to deny to others, but I am suggesting his caustic words on the issue cause real emotional harm, so perhaps he should be more sensitive to that reality.

I am sure that some readers of this post may think there is something inappropriate in raising these issues about Justice Thomas instead of just criticizing the doctrine in his opinions. But law professors are allowed to freely criticize Presidents, Senators, Governors, and other political officials along the lines I have spelled out here. If I am breaching some golden rule by raising issues about how the content of his character may affect the substance of his work, then that is a discussion that may be just as important as asking who is Justice Clarence Thomas. 

3 comments:

Unknown said...

I think it is fair to say this article is 25 years late.

Shag from Brookline said...

I'm interested in the thinking of the George H.W. Bush Administration. Bush's first nominee, Justice Souter, turned out to be a surprise to Republicans, but not right away. When Justice Thurgood Marshall decided to retire, the thought emerged that perhaps there should be an African-American seat on the Court, just as decades earlier, following Justice Brandeis, it was thought there should be a Jewish seat on the Court. Jumping back to the 1988 presidential campaign, Bush I with Lee Atwater as his guide introduced us to Willie Horton and other racial tactics that seemed successful. (Atwater made dying declarations of regrets for these tactics. Did Bush I?)

Jumping ahead to replacing Marshall and perhaps establishing an African-American seat on the Court, did Bush I have thoughts on the legal career of Marshall with his successes before the Court that included Brown v. Bd. of Educ. (1954); Marshall's continuing role during the civil rights movement; Marshall's role as a Court of Appeals judge and then as Solicitor General; and finally Marshall's role on the Court? Were these thought positive or negative? Did Bush I wish to appoint an African-American to the Court who demonstrated the legal accomplishments of Marshall? Or was Bush I displeased with what Marshall had accomplished in the years of his legal and judicial careers? While Bush I may have been surprised by his earlier appointment of Justice Souter on the latter's role on the Court, was Bush I surprised by Justice Thomas' performance on the Court? Or, has Justice Thomas performed on the Court as Bush I expected? Did Bush I in appointing Thomas have in mind undoing much of what Marshall had accomplished in his long legal and judicial careers? Did the Republican establishment supporting the nomination of Thomas wish to so undo Marshall's accomplishments?

Joe said...

Many say Souter was a surprise but given his background and moderate Sen. Rudman supporting him, in hindsight, how much of one was he really? Maybe, people tried to believe he would be a safe conservative pick. But, he was tailor-made to be in the mold of Ford appointee Stevens, who once said Souter was the one he trusted the most.

Thomas seems to me to be Bush41's gift to the conservatives of his party. He seemed to feel that was a necessary evil, like usage of Lee Atwater. It's hard to see that in a vacuum that Bush41 thought Thomas was "the best" option, whatever he said. The black judge Kennedy was thinking of picking and Warren/Douglas said "nah, that would just be another Frankfurter," seems more the type Bush would on his own pick.