No longer doubting Thomas
I'm not a big fan of Associate Justice Clarence Thomas. I think his strict constructionalism is an abdication of the role of judges. Marshall wrote in Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is." If it was as simple as the language of the text, then it probably wouldn't have gone up to an appellate court. I've also found Thomas all too ready to accede to the government's position in any case. For example, he was the sole Justice in Hamdi v. Rumsfeld who believed that it was within the Executive's inherent powers to detain unlawful combatants who are U.S. citizens without any due process. Many people rightly or wrongly think Thomas just agrees with Scalia. However, Justice Scalia took the exact opposite position in Hamdi. Since habeas corpus was not suspended, Hamdi must receive normal criminal proceedings in accords with his constitutional rights. Justice Stevens, who is the most left of the current court, though he certainly is no Earl Warren, joined in Scalia's opinion. When the anchors of both the conservative side and the liberal side of the Court agree on something, then it's probably something that everyone across the entire political spectrum can embrace. Alas, Stevens and Scalia were only two of nine.
Since Justice Thomas is the sole black person on the Supreme Court, he has proved something of a lightning rod for race issues. Many see him as a man who has "sold out" and "assimilated" white values; he is an "Uncle Tom". For example, his wife, Virginia, is white. People also point out that even though he opposes affirmative action, he has received a great deal of benefits due to affirmative action. His acceptances to both College of the Holy Cross and Yale Law were through affirmative action program to increase the number of black law students. I disagree with this dismissive view of Thomas. Thomas certainly got into Yale on his own merits. He was also accepted at Penn and Harvard, and chose Yale because the affirmative action program gave him financial assistance. Thomas literally grew up in a house with dirt floors. His father left their family, leaving his mother to support a family on a maid's salary. He lived in segregated Savannah, where he was denied entrance to the main library. He went from dirt floors to the Supreme Court. There is no possible way to look at it except damn impressive. Clarence Thomas is far more than the color of his skin and he is certainly free to take positions based on more than the color of his skin. As a result, sometimes, his opinions will be opposite "traditional" black views. He is also free to choose whom he marries. I will acknowledge that his race was a major factor in his appointment to the Supreme Court. Only another black man could take the seat vacated by Associate Justice Thurgood Marshall.
Marshall was unarguably one of the nation's greatest attorneys. He was lead counsel for the NAACP and successfully argued Brown v. Board of Education. Of course, there were a few other Supreme Court cases he argued. He appeared before the highest court in the land 32 times and won 29 of those appearances. He then served on the 2nd Circuit of the Court of Appeals, before President Johnson selected him as the Solicitor General, which is probably the most prestigious position possible for a practicing lawyer. The Solictor-General is the third-highest person in the Department of Justice after the Attorney-General and Deputy Attorney-General. More importantly, he is the person who argues the government's side before the Supreme Court, though strangely in 19th-century garb. Marshall as Solicitor-General won another 14 of 19 times. With all these stats, no wonder analysis of Supreme Court Justice makes for excellent baseball analogies. So Clarence Thomas had some pretty big shoes to fill, and it was understandable that given Marshall's legacy, there would be a lot of emphasis on race.
So there's a lot of pressure on Thomas to be the successor to Thurgood Marshall, both in the actual seat and in his judicial philosophy. However, some have commented that Thomas's legacy will be undoing Marshall's legacy. One example was in Missouri v. Jenkins, in which I initially found Thomas' concurrence quite disingenuous. Missouri v. Jenkins was about a decades-long battle to desegregate the Kansas City Missouri School District, which was proving to be impossible simply because there are just too many black students in the district to achieve some sort of equal division in school with other races. Justice Thomas wrote that all-black schools could not be presumed to be a disadvantage, and how historically black institutions "function[ed] as the center and symbol of black communities, and provide[d] examples of independent black leadership, success and achievement. . . ." I knew that Thomas went to St. John Vianney Minor Seminary, at which he was the only black student, to College of the Holy Cross, and to Yale Law. I was disturbed that Thomas would pontificate on historically black institutions even though he had little experience with them. I was wrong. Thomas' first two years of high school was at an all-black school before he transferred to the all-white Catholic school. He might not have gone to Howard University for law school like Thurgood Marshall did, but Thomas did at one point go to an all-black school. Then going to all-white or predominantly-white schools was no picnic for Thomas. He supported the Black Panther in his college days. He cites Richard Wright and Native Son. There really is a lot more to Clarence Thomas and notions of black pride for which people, both conservative and liberal, refuse to give credit.
My ruminations on Justice Thomas are prompted by a rare public appearance in Georgia, which was enlightening. It definitely improved my opinion of him. He answered questions as a part of a seminar on appellate arguments, and who better to talk about appellate arguments than an Associate Justice of the Supreme Court of the United States?
Thomas is famously taciturn on the bench. He isn't one to ask softballs or to ask a particular question in order to bring a point across to his fellow justices. In other words, he doesn't grandstand like Scalia does. Dahlia Lithwick of Slate made fun of his terseness in her report on the oral arguments of Georgia v. Randolph, when she wrote that "From behind a burning bush, Thomas' voice boomed." Many biographies of Thomas stated that he doesn't speak during oral arguments because he is embarrassed about his Gullah accent, spoken by creoles on the southeastern coast. However, Thomas gave a different reason. "It seems fashionable now for judges to be more aggressive in oral arguments. . . . I find it unnecessary and distracting. . . . I truly think oral arguments would be more useful if the justices would listen rather than debating the lawyers. . . . I think the judges need to listen if the arguments are to be effective." I personally disagree. I think oral arguments are the time for the discussion, when the judges actually get the opportunity to interact with the lawyers, and not just read static words on a page. It's the time when judges can refine the issues and the pose the hypotheticals that weren't considered in the briefs. If a judge sat back and listened, he's going to hear an oral regurgitation of the written brief. It is true that it might turn into the judges arguing and not the lawyers arguing, so Thomas does have a valid point, and it's certainly a more respectable reason than an accent.
He also talked about the appellate briefs submitted to the court, where to my surprise, he praised the ACLU for submitting excellent briefs. "They are pretty principled about the positions they take, and they're well-informed and pretty helpful." Except for the ACLU, he doesn't place much stock in briefs submitted by groups with political agendas. He specifically mentions a group of historian who submitted amicus briefs for both Hamdi v. Rumsfeld and Hamdan v. Rumsfeld. I don't know which one he is specifically referring to, since there were a number of briefs by military law scholars in both cases. I should also point out that a professor I had, Michael Belknap, wrote one of those briefs. I hope Thomas wasn't referring to him.
I'm still not a fan of Thomas, and still think he's far too conservative and think he would ask how high if to government told him to jump. However, he's not an Uncle Tom and he's not an idiot. He started life as a poor black man in a world of discrimination and segregation. Despite that, he developed a spectacular mind. He is now an Associate Justice of the Supreme Court and deserves all the respect that position commands. Of all the current Justices, I doubted Thomas's credibility as a Justice the most. After learning a bit, I don't anymore.
Since Justice Thomas is the sole black person on the Supreme Court, he has proved something of a lightning rod for race issues. Many see him as a man who has "sold out" and "assimilated" white values; he is an "Uncle Tom". For example, his wife, Virginia, is white. People also point out that even though he opposes affirmative action, he has received a great deal of benefits due to affirmative action. His acceptances to both College of the Holy Cross and Yale Law were through affirmative action program to increase the number of black law students. I disagree with this dismissive view of Thomas. Thomas certainly got into Yale on his own merits. He was also accepted at Penn and Harvard, and chose Yale because the affirmative action program gave him financial assistance. Thomas literally grew up in a house with dirt floors. His father left their family, leaving his mother to support a family on a maid's salary. He lived in segregated Savannah, where he was denied entrance to the main library. He went from dirt floors to the Supreme Court. There is no possible way to look at it except damn impressive. Clarence Thomas is far more than the color of his skin and he is certainly free to take positions based on more than the color of his skin. As a result, sometimes, his opinions will be opposite "traditional" black views. He is also free to choose whom he marries. I will acknowledge that his race was a major factor in his appointment to the Supreme Court. Only another black man could take the seat vacated by Associate Justice Thurgood Marshall.
Marshall was unarguably one of the nation's greatest attorneys. He was lead counsel for the NAACP and successfully argued Brown v. Board of Education. Of course, there were a few other Supreme Court cases he argued. He appeared before the highest court in the land 32 times and won 29 of those appearances. He then served on the 2nd Circuit of the Court of Appeals, before President Johnson selected him as the Solicitor General, which is probably the most prestigious position possible for a practicing lawyer. The Solictor-General is the third-highest person in the Department of Justice after the Attorney-General and Deputy Attorney-General. More importantly, he is the person who argues the government's side before the Supreme Court, though strangely in 19th-century garb. Marshall as Solicitor-General won another 14 of 19 times. With all these stats, no wonder analysis of Supreme Court Justice makes for excellent baseball analogies. So Clarence Thomas had some pretty big shoes to fill, and it was understandable that given Marshall's legacy, there would be a lot of emphasis on race.
So there's a lot of pressure on Thomas to be the successor to Thurgood Marshall, both in the actual seat and in his judicial philosophy. However, some have commented that Thomas's legacy will be undoing Marshall's legacy. One example was in Missouri v. Jenkins, in which I initially found Thomas' concurrence quite disingenuous. Missouri v. Jenkins was about a decades-long battle to desegregate the Kansas City Missouri School District, which was proving to be impossible simply because there are just too many black students in the district to achieve some sort of equal division in school with other races. Justice Thomas wrote that all-black schools could not be presumed to be a disadvantage, and how historically black institutions "function[ed] as the center and symbol of black communities, and provide[d] examples of independent black leadership, success and achievement. . . ." I knew that Thomas went to St. John Vianney Minor Seminary, at which he was the only black student, to College of the Holy Cross, and to Yale Law. I was disturbed that Thomas would pontificate on historically black institutions even though he had little experience with them. I was wrong. Thomas' first two years of high school was at an all-black school before he transferred to the all-white Catholic school. He might not have gone to Howard University for law school like Thurgood Marshall did, but Thomas did at one point go to an all-black school. Then going to all-white or predominantly-white schools was no picnic for Thomas. He supported the Black Panther in his college days. He cites Richard Wright and Native Son. There really is a lot more to Clarence Thomas and notions of black pride for which people, both conservative and liberal, refuse to give credit.
My ruminations on Justice Thomas are prompted by a rare public appearance in Georgia, which was enlightening. It definitely improved my opinion of him. He answered questions as a part of a seminar on appellate arguments, and who better to talk about appellate arguments than an Associate Justice of the Supreme Court of the United States?
Thomas is famously taciturn on the bench. He isn't one to ask softballs or to ask a particular question in order to bring a point across to his fellow justices. In other words, he doesn't grandstand like Scalia does. Dahlia Lithwick of Slate made fun of his terseness in her report on the oral arguments of Georgia v. Randolph, when she wrote that "From behind a burning bush, Thomas' voice boomed." Many biographies of Thomas stated that he doesn't speak during oral arguments because he is embarrassed about his Gullah accent, spoken by creoles on the southeastern coast. However, Thomas gave a different reason. "It seems fashionable now for judges to be more aggressive in oral arguments. . . . I find it unnecessary and distracting. . . . I truly think oral arguments would be more useful if the justices would listen rather than debating the lawyers. . . . I think the judges need to listen if the arguments are to be effective." I personally disagree. I think oral arguments are the time for the discussion, when the judges actually get the opportunity to interact with the lawyers, and not just read static words on a page. It's the time when judges can refine the issues and the pose the hypotheticals that weren't considered in the briefs. If a judge sat back and listened, he's going to hear an oral regurgitation of the written brief. It is true that it might turn into the judges arguing and not the lawyers arguing, so Thomas does have a valid point, and it's certainly a more respectable reason than an accent.
He also talked about the appellate briefs submitted to the court, where to my surprise, he praised the ACLU for submitting excellent briefs. "They are pretty principled about the positions they take, and they're well-informed and pretty helpful." Except for the ACLU, he doesn't place much stock in briefs submitted by groups with political agendas. He specifically mentions a group of historian who submitted amicus briefs for both Hamdi v. Rumsfeld and Hamdan v. Rumsfeld. I don't know which one he is specifically referring to, since there were a number of briefs by military law scholars in both cases. I should also point out that a professor I had, Michael Belknap, wrote one of those briefs. I hope Thomas wasn't referring to him.
I'm still not a fan of Thomas, and still think he's far too conservative and think he would ask how high if to government told him to jump. However, he's not an Uncle Tom and he's not an idiot. He started life as a poor black man in a world of discrimination and segregation. Despite that, he developed a spectacular mind. He is now an Associate Justice of the Supreme Court and deserves all the respect that position commands. Of all the current Justices, I doubted Thomas's credibility as a Justice the most. After learning a bit, I don't anymore.
posted by Pettifogger | 8:37 AM
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