The Vindication of Clarence Thomas

I’m easing back into blogging, and just had to note the new perceptions of Supreme Court Justice Clarence Thomas that are appearing in the wider media. I cite two below. I especially enjoyed Thomas’s assessment of “the elites”. He is an anti-snob who received an Ivy League education and who remains especially suspicious of the elite Ivys and their audacity and monopoly on opinion in the media and (especially) the judiciary. I really gained a new respect from him from the sources I cite below (Jeffrey Toobin and Walter Russell Mead’s article on Toobin), enjoy if you haven’t already read about this new take on the man.

I also agree with Justice Thomas that Affirmative Action tends to negate the prestige of an individual’s accomplishment since it is forever cast under a veil of suspicion as to its authenticity. I mean, I’m half American Indian and half Hispanic (Sephardic New Mexico roots) and have often been told that “I must have gotten (x or y or z) because of Affirmative Action. I am always shocked and always protest that this is not the case, as I was usually at the top of my class in test scores and often in the gifted classes – but, of course, one can never defend oneself enough and the taint remains. Apparently, Judge Thomas knows this also from hard experience.

As most people are aware, Clarence Thomas has been an embattled and often belittled Supreme Court Justice from his nomination to the present day. Most people I know think he is a mute idiot and a token African American Justice chosen by George H.W. Bush to give him some kind of credibility regarding “diversity” while also shoring up the extreme constitutional conservatism of Scalia on the bench. He’s widely regarded as a mere intellectual follower of Scalia and widely derided by lefties of all stripes from mild and moderate to extreme as being a dummy. Well, apparently, it is becoming apparent even to constitutional scholars who are left wing and ideological foes, and who have held a scornfully low opinion of him, that actually Thomas is brilliant and that he knows exactly what he is doing and is following no one, first from a blog post by Walter Russell Mead commenting on Toobin’s article in the New Yorker:


If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.

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Thomas may get the last laugh, and apparently, he is a man with a razor sharp intellect and strongly felt opinions who despises those he calls “the elites”. That is, the graduates from Harvard, Columbia and other Ivy League schools that tend to be the only people selected for important judgeships. While he is also himself a graduate of Yale, he refuses to do speaking engagements at Ivy league schools, and is the only Supreme Court Justice to select law clerks from schools that are not Ivy League, here from Toobin’s article in the New Yorker :

“We talk about diversity. The real problem of our Court is that it’s all Ivy League,” Thomas said. Currently, all nine Justices attended law school at either Harvard or Yale. “Correct me if I’m wrong, but I think there are other law schools out there,” he said. Alone among his colleagues, Thomas usually selects at least some of his law clerks from less prominent schools. In recent years, his clerks have included graduates of the law schools of Creighton University, in Nebraska; Rutgers; George Mason; and the University of Utah.”

He has a low regard for his own education at Yale feeling that Affirmative Action sullied the brand saying: “When he recently received an honorary doctorate from the Stetson University College of Law, in Gulfport, Florida, he said, “Thank you for a law degree that I can put up on my wall.” The audience greeted the remark with polite laughter, but Thomas’s sentiment has a long history. Thomas graduated from Yale Law School in 1974, and he maintains a rich and public loathing for the institution. In his autobiography, published in 2007, he wrote, “As a symbol of my disillusionment, I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale. I never did change my mind about its value.” Thomas has refused entreaties from a series of deans at Yale to sit for a portrait for the school…”

Read more Toobin article

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Finally, Toobin testifies that Thomas may well soon have a chance to nullify many of the structures of the modern progressive (post New Deal) state, giving a new credence to the 10th amendment just as in the recent past, the 2nd amendment came to be viewed in a different light — giving new weight to the idea that the 2nd amendment protects individual gun owners’ rights and not simply the right of states to have an armed militia. I’m just getting clear with all of this right now, but I found this article very informative and surprising since I had also been boondoggled into seeing Thomas as at the least, a mediocre Justice. Apparently, once again, I have had to rethink this received and formerly unquestioned opinion. Soon, he may have a chance to declare Obama’s mandate to purchase health insurance unconstitutional, and this could have broad implications for other instances of the Federal government mandating policy to the states. And, Toobin, BTW is not a booster of conservative views apparently, but a liberal himself. He writes this in warning.

More here, directly from Jeffrey Toobin:

“These tempests obscure a larger truth about Thomas: that this year has also been, for him, a moment of triumph. In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”

Thomas’s intellect and his influence have also been recognized by those who generally disagree with his views. According to Akhil Reed Amar, a professor at Yale Law School, Thomas’s career resembles that of Hugo Black, the former Alabama senator who served from 1937 to 1971 and is today universally regarded as a major figure in the Court’s history. “Both were Southerners who came to the Court young and with very little judicial experience,” Amar said. (Thomas is from Georgia.) “Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.”

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. 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. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

In his jurisprudence, Thomas may be best known for his belief in a “color-blind Constitution”; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control. In Thomas’s view, the Constitution imposes an ideal of racial self-sufficiency, an extreme version of the philosophy associated with Booker T. Washington, whose portrait hangs in his chambers. (This personal gallery also includes Frederick Douglass, Abraham Lincoln, Ronald Reagan, and Margaret Thatcher.)

In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” ”


Read more more Toobin on Thomas

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I recommend everyone read the article! Quite an eye opener. Yes, Toobin talks about Anita Hill. Whether or not Thomas has a potty mouth and a weakness for bad sexual politics in the office is not historically clear, although I have always tended to believe Hill — but now that issue is not of great importance. Not when Clarence Thomas is poised to help make history. Apparently, Judge Thomas has more brains than he has been given credit for and finally, he may be able to vindicate himself and his views on a larger historical stage.

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2 thoughts on “The Vindication of Clarence Thomas

  1. americantransman September 17, 2011 / 3:03 pm

    Thanks for posting this L.W. Since the Anita Hill hearings, I have only thought of Clarence Thomas as a mere caricature, but now I have a more “three dimensional” portrait of him because of your post.

    And while I’m commenting, a belated congratulations on the one-year anniversary of your blog!

  2. libertywolf September 17, 2011 / 5:09 pm

    Yr welcome AT. And, thanks for the congrats on the anniversary!

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