A Supreme Embarrassment

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It is better to keep your mouth closed and let people think you’re a fool than to open it and remove all doubt – Mark Twain

Clarence Thomas’s Record

As far back as anyone can remember, U.S. Supreme Court Justices have peppered attorneys appearing before them with searching questions. Over a ten-year period, Justice Clarence Thomas set an all-time record — which will surely never be broken – by not asking even one question. This period of oral argument is integral to the proceedings of the Court, but Thomas remained silent.

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Still, Clarence Thomas can be rightfully considered a great American success story. A Black child from a poor family who grew up in the Jim Crow South, he is now the longest sitting Justice on the US Supreme Court. Others would describe him as nothing but an empty judicial robe – a man utterly unqualified for his last four jobs.

I would maintain this even that description may be too kind. Thomas is surely one of the worst justices in the Court’s 233-year history. But perhaps I’m being too kind.

Still, Clarence Thomas, who came from such a disadvantaged background and managed to get a very good education and was admitted to Yale Law School--albeit along with twenty-three other students of color -- as the beneficiary of an affirmative Action program. Years later, Thomas would internalize the stigma that others – especially prospective employers would view his Yale Law degree to be of dubious provenance.

Paradoxically, Thomas would soon become a bitter opponent of affirmative action. As Rosa Parks -- who inspired the 1955-56 Montgomery Alabama bus boycott – had observed in 1996, “He had all the advantages of affirmative action and went against it.”

Thomas seems to want to have it both ways. On the one hand, he never would have been admitted to Yale – or any other Ivy League law school – without affirmative action. But he believes – with ample cause – that his benefiting from affirmative action has unfairly stigmatized him and many other beneficiaries. His solution? Do away with these programs.

How did Clarence Thomas ever manage to end up on the Supreme Court in the first place? He was the right man -- a reactionary Black Republican and Yale Law graduate -- in the right place – a newly minted Federal Appeals Court judge – at the right time – to fill the seat of Thurgood Marshall, a remarkable civil rights advocate, who was the first Black person to ever serve on the Court. Whatever one might think of Clarence Thomas, he is no Thurgood Marshall.

Thomas had previously been appointed to three very high-level government jobs for which he had no apparent qualifications, solely because he had been taken under the wing of John Danforth, a highly regarded Missouri Republican who served as Missouri Attorney General, and then, U.S. Senator.

A Rare Political Commodity

What did Danforth see in Thomas that few other people seemed to see? A very politically astute observer, he realized that a rightwing Black Republican with a law degree from Yale was indeed quite a rare political commodity. Thomas would be an excellent recruit for a political party with virtually no Black leaders. Soon after Danforth was elected U.S. Senator, he suggested that President Ronald Reagan appoint Thomas as Assistant Secretary of Education for Civil Rights. That job provided a stepping stone to becoming the Chairman of the U.S Equal Employment Opportunity Commission.

Two things stand out about these two appointments. There was little in Thomas’s background that qualified him for these jobs, and subsequently, there were no discernable accomplishments under his leadership.

In 1990, Reagan’s successor, President George H.W. Bush nominated Thomas to the nation’s second highest court – the U.S. Court of Appeals for the District of Columbia Circuit. That was like taking a kid who never played even a single inning of Little League baseball and make him a starter on a Triple A minor league team – just a phone call away from being called up to the Major Leagues.

That phone would come from Bush just nineteen months later, when he nominated Clarence Thomas to serve on the Supreme Court. No wonder Thomas would keep his mouth shut during oral argument on the Court.

But as you may recall, the nomination process did not go smoothly. Word reached members of the Senate Judiciary Committee that Thomas may have sexually harassed Anita Hill, a lawyer who had worked closely with him at the Department of Education, and then at the U.S. Equal Employment Opportunity Commission.

In widely watched televised hearings, Hill and several other former colleagues and friends provided vivid details of Thomas’s alleged sexual harassment of Hill and other women. These accusations were not just vehemently denied by Thomas, but poopooed by several Republican Senators, some of whom cast cruel aspersions about Anita Hill’s honesty.

Hill had been an extremely reluctant witness, clearly embarrassed about having to testify in public. Evidently a very private, even shy person, she was clearly embarrassed by being forced to provide in very graphic detail, the sexual harassment she alleged to have taken place during the years she had worked with Thomas.

Did she make this up, or did Thomas actually subject her to the disgusting treatment she described? As a well educated and legally credentialed Black woman, she had faced even greater vocational barriers than the treatment she allegedly received from Thomas. After all, just as Danforth had been his mentor, Thomas had been hers. Perhaps even more to the point, what other vocational options did she have?

Still, her Republican inquisitors on the Senate Judicial Committee raised a very fair question: If Thomas had indeed done all the horrible things she said he did, then why would she follow him from the Department of Education to the Equal Opportunity Employment Committee?

Could it possibly be that because that might have been the best path she saw for advancement, she was willing to pay the price and keep her mouth shut? If that were true, then why had she turned on him now and testified against him at these televised hearings?

Obviously, she had been compelled to testify.  If Senator Joe Biden, who then chaired the Senate Judicial Committee and his fellow Democrats promised her that they would do all they could to spare her embarrassment, then they surely did not try all that hard to keep their word.

Perhaps most significantly, Thomas declared that the committee hearings were nothing but “a high tech” lynching, casting himself as the victim. More significantly, he then refused to answer any questions.

Had Thomas been asked searching legal questions about landmark Supreme Court cases, Thomas, who never has demonstrated any great depth of legal knowledge, may have flunked the exam.

So, this tactic may well have saved his nomination. As it was, when the Senate finally voted, he won by just four votes – 52 to 48. What we will never know is how well he would have fared had he been subjected to such a rigorous – if not inquisitorial – examination as was Justice-to-be Kantanji Brown Jackson just weeks ago.

During the last couple of months Thomas has made two unforced errors – both real no-brainers. One was posing for a photo with Hershel Walker, who, decades ago was an all-American football player for the University of Georgia, which happens to be the pride of Thomas’s home state. Walker went on to be a star in the National Football League, and is now a favorite to win the Republican senatorial primary.

This was likely just an innocent photo – at least from Thomas’s perspective. But most adults, regardless of their political views, would have grasped the political implications of this photo-op. It was an implied political endorsement, and utterly inappropriate for a Justice of the U.S. Supreme Court.

Thomas’s second mistake – a much more serious one -- was his failure to recuse himself from two cases that arguably no any other Justice would have ever agreed to hear. In fact, these may have been the stupidest decisions ever made in the 233-year history of the Court. Compounding these mistakes, Thomas was surely warned about them by Chief Justic John Roberts, and perhaps some of his other colleagues.

It is widely known that Virginia – better known as Ginni – Thomas, to whom Clarence has been married for thirty-three years – is a vociferous believer in the transparent lie that the 2020 presidential election was stolen from President Donald Trump. A long-time far rightwing political activist, Ginni Thomas actually phoned Trump’s Chief of Staff some twenty-nine times in the weeks following the election, urging on him various measures to “stop the steal.”

Ginni Thomas even attended Trump’s rabble-rousing January 6th speech firing up his adoring mob to march on the Capital and “fight like hell.” It defies credulity that Justice Clarence Thomas was unaware of his wife’s activities. That knowledge necessitated his recusal from any cases before the Court involving the January 6th insurrection or overthrowing the results of the 2020 presidential election.

Why didn’t Thomas recuse himself? He had to have been well aware of his wife’s role in promoting Trump’s “Stop the Steal” crusade. And he surely understood that judicial ethics dictated that he needed to disqualify himself from participating in this case. If anyone can provide a reasonable justification, I would love to hear it.

Thomas also refused to recuse himself from another case related to the June 6th insurrection that his wife passionately supported. When former President Trump refused to turn over fifteen boxes of presidential papers – some of which may have had some bearing on his “Stop the Steal” effort, the Supreme Court would vote on whether to hear the case.

The Court voted eight to one not to hear the case, handing a devasting defeat to Trump. Who was the long dissenter? Justice Thomas.

So why did Thomas refuse to recuse himself from two extremely important cases, in each of which his wife had a vital interest? Perhaps no one knows except Mr. Thomas – and perhaps Mrs. Thomas.

One might wonder whether these two utterly inappropriate – if not illegal – acts carried out by a person who truly understood that he was doing something very wrong. Or was the man just too stupid or ignorant to be able to distinguish between right or wrong?

Actually, it doesn’t matter. Perhaps it’s still not too late for Clarence Thomas to do the right thing, making what will be, by far, his greatest contribution to the institution to which he owes so much. He could retire.