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statements were deceptive or evasive. Simply
stated, Thomas' voting record on the Supreme
Court belies his confirmation testimony. As noted
in a thoughtful Seattle University Law Review
article in 1996, “Doubting Thomas: Confirmation
Veracity Meets Performance Reality (Joyce A.
Baugh and Christopher E. Smith):
"Whether or not Thomas' confirmation testi
mony was purposefully evasive, the evidence
clearly shows that significant aspects of his testi
mony are at odds with his record on the Court. He
has not proven to be an open-minded, indepen
dent thinker and, on such controversial issues as
abortion, voting rights, and affirmative action,
Thomas' views in Supreme Court cases have been
consistent with his controversial pre-Court
speeches and writings rather than with the dis
claimers and explanations he presented during his
confirmation hearings. ... [Thomas'] judicial per
formance [was] quickly and obviously out of step
with his confirmation testimony. [There] was no
evolutionary process by which a judge developed
new perspectives after spending time on the
bench. Thomas did not move to a new position
from his original point. Instead, he moved back to
his original position after telling the nation that
he really stood on some other ground as a judge."
Let me turn, as a specific example of this, to a
woman's right to an abortion. When questioned
on this matter, Thomas told the Senators that he
did not have an opinion or position on the issue
and that he was open-minded on abortion rights.
Yet since joining the Supreme Court Thomas has
remorselessly opposed the right to an abortion,
always voting against any woman claiming a vio
lation of this right. Indeed, within one year of
taking office, in the case of Planned Parenthood v.
Casey, he joined in two strident antichoice dis
senting opinions, one filed by Chief Justice
Rehnquist and the other by Justice Scalia, both of
which explicitly advocated the outright overruling
of Roe v. Wade. If Thomas had not been deceptive
or evasive at his confirmation hearing, then, as
the New York Times observed, "It's hard to grasp
hc.v anyone could go so quickly from such agnos
ticism to joining a dissent that bitterly condemns
[Roe v. Wade] and demands that it be overruled."
Or, stating it somewhat differently, as Baugh
and Smith note:
"Despite his claim to have never examined
the issue of abortion, Thomas evinced no reluc
tance to quickly and whole-heartedly endorse
[Justice Scalia's] characteristically strong and
sarcastic attacks on [Roe v. Wade]. ... Thomas'
quick endorsement of a strong conservative posi
tion on abortion did little to quell suspicions
that he had already adopted such a position but
had intentionally hidden his view from the
Senate and the public."
GRAVE DOUBT
There is also the Anita Hill matter. Law pro
fessor Anita Hill, it will be recalled, testified at
the confirmation hearing that previously, at their
workplace, Clarence Thomas had sexually harassed
her, and he responded by denying it in his testi
mony. The right wing elements who adore Thomas
immediately began assassinating the character of
Ms. Hill with their usual slanderous ferocity. Their
line of attack was that Hill was "a little bit nutty,
and a little bit slutty," to quote one authority. I
must confess I believe Hill, although I can't prove
she was telling the truth. But the basic point is
this. After Hill's testimony the Senate had before
it a nominee who had been credibly accused of
serious misconduct in a case where the truth of
the allegations had been neither proved nor dis
proved. Despite this, it proceeded to confirm
Thomas. Thus, it put on the Supreme Court a man
under a dark cloud of suspicion, a cloud which
remains undispelled. This was a ghastly mistake
because a Supreme Court Justice, like Caesar's
wife, must be above suspicion. It was a mistake
sparked by right-wing partisanship. If the nom
inee had been a liberal named by a liberal presi
dent, the Senate conservatives would have voted
the nominee down on the grounds no one should
serve on the highest court in the land if there are
serious unresolved claims of misconduct pending
against him. A Supreme Court Justice, they would
have maintained piously, cannot be confirmed
while under suspicion of misconduct. But because
they agreed with Thomas' politics, they hypocriti
cally voted for him.
One reason Justice Thomas is the object of
pickets and protests at law schools, therefore, lies
in the circumstances of his appointment. At his
confirmation hearing he appeared to prevaricate
about his views; doubts about his veracity were
compounded by the votes he began casting as
soon as he was on the Supreme Court; and he was
confirmed despite grave allegations of personal
misconduct which were never disproved. The cir
cumstances of Thomas' confirmation indelibly
tainted his judicial appointment and remain a blot
on his judgeship.
ANTi-RIGHTS
But the princ.pal reason why Justice Thomas is
detested and protested is his incredibly poor
record in voting on human rights issues in the
Supreme Court. In my Open Letter, I summarized
numerous Supreme Court decisions involving crim
inal procedure, habeas corpus, prisoners' rights
and civil rights and liberties in which Thomas
relentlessly voted against the individuals who
claimed their rights had been violated. There were
many other such dreary cases which I had neither
the time nor the energy to mention.
Since I prepared that Open Letter, the Supreme
Court has handed down a number of new decisions
further manifesting Justice Thomas' pattern of
resolving disputes between the individual and the
government in favor of government. Let me men
tion two, in which we see the vintage Thomas.
First, in Miller-El v. Cockrell, decided Feb. 25,
the Court held, 8-1, that a black Texas death row
inmate who alleged that prosecutors engaged in
racial discrimination in the jury selection process
at his trial was entitled to appeal the denial of
his federal habeas corpus petition. Only Justice
Thomas dissented, voting to deny the inmate
even an appeal.
In Lockyear v. Andrade, decided Mar. 5. Justice
Thomas was part of the five-justice majority
(Rehnquist, O'Connor, Scalia, Kennedy, and
Thomas) which denied federal habeas corpus
relief to a California inmate sentenced under that
state's draconian "three strikes" law. Although
the five-justice majority did acknowledge that a
prison sentence grossly disproportionate to the
crime would violate the Eighth Amendment bar
on cruel and unusual punishments, it nonetheless
held that the inmate's sentence was constitu
tional. Justice Thomas and Justice Scalia also
filed separate concurring opinions in a com
panion case decided the same day, Ewing v.
California, which also involved an inmate sen
tenced under the "three strikes" law. In their
concurring opinions in Ewing both Scalia and
Thomas took the position that the Eighth
Amendment contains no proportionality principle
whatever and that a prison sentence never vio
lates the Amendment merely because it is harshly
disproportionate to the offense.
In order to put all this into perspective, let me
add this. The California "three strikes" law man
dates a life sentence, with no parole for 25 years,
for a felony conviction, even a minor one, that
follows two prior convictions for serious or violent
crimes. One of the defendants was serving 25
years to life for stealing golf clubs; the other
defendant was serving a life sentence with no
parole for 50 years for shoplifting some videos. As
the Washington Post observed, "such sentences
have no place in our society." They certainly do,
however, in the world of Clarence Thomas.
Let me also mention one other recent Supreme
Court decision typifying Justice Thomas' insensi
tivity to the plight of the weak and the helpless.
In Brown v. Legal Foundation, decided Mar. 26, the
Court by a 5-4 vote upheld the legality of a prac
tice involving interest on lawyers' escrow accounts
which is used in every state to raise money for
legal services for the poor. Justice Scalia filed a
dissenting opinion, in which Chief Justice
Rehnquist, Justice Kennedy and Justice Thomas
joined. If the decision had gone the way Justice
Thomas voted, about $160 million used to pay
lawyers for the indigent would have been wiped
out. The lawsuit challenging the practice had
been brought by a right-wing legal foundation
which openly boasted that its purpose was to
decapitate funding for legal services for the poor.
If it had been up to Clarence Thomas, that foun
dation's evil effort would have succeeded.
ODIOUS PERFORMANCE
To understand why Thomas is so regularly
protested, there are three other factors to be
considered.
First, Justice Thomas took the Supreme Court
seat previously occupied by the immortal Justice
Thurgood Marshall, the great defender of freedom;
and the gigantic differences between Thurgood
Marshall's Court record and Clarence Thomas' have
palpably (and justifiably) worked to Thomas' detri
ment. No one should ever underestimate the con
sequences on public opinion of what Michigan
federal judge Julian Cook calls "the sharp philo
sophical differences that exist between Thurgood
Marshall and Clarence Thomas, the only two
African-Americans to ever sit on the high court."
Thurgood Marshall advanced and glorified indi
vidual rights; Clarence Thomas retards and debases
them. Justice Marshall, one scholar tells us, was
known "for a steadfast belief in the Constitution
as the pillar of democratic and egalitarian princi
ples and in law generally as the protector of the
poor and powerless." Justice Thomas, on the other
hand, rejects that belief as sentimental claptrap.
Imagine everything Justice Marshall was, and you
have imagined what Justice Thomas is not. You
know, one of the biggest misrepresentations I ever
heard was when one of Justice Thomas' law
clerks—and they, I should add, are major compo
nents of his claque—told a reporter that Thomas'
decisions "are absolutely consistent with Justice
Marshall." No wonder Thomas' claque regards all
criticism of Thomas as incomprehensibly base.
Second, it must never be forgotten that not
only does Justice Thomas systematically turn his
back on individuals (and especially minorities, the
poor, the powerless, the weak, the oppressed and
prisoners, including death row inmates) who seek
redress in the courts for violations of their rights,
but he sometimes rejects their claims scornfully
and mockingly. In certain of his anti-human rights
judicial opinions there is a harshness of tone, a
sarcastic meanness, an aggressive coldness that is
alarming to non-Social Darwinists. Quite apart
from his ideological defects, Justice Thomas lacks
the temperament to be a judge. And this is part of
the reason the New York Times labeled him "cruel."
Third, despite becoming a Justice, Clarence
Thomas has continued to act like a partisan
Republican. His scandalous participation in Bush
v. Gore, in which he and four other Republican
justices first stopped an ongoing vote recount and
then barred any further recounts, thereby handing
the presidency to tne Republican candidate, is
fully discussed in my Open Letter. Thomas' unpar
alleled conduct shortly after his Senate confirma
tion provides another example of his political par
tisanship. To quote one law review article dis
cussing the matter, "After he was confirmed,
Thomas reportedly acted like a politician in
showing his appreciation to conservative groups,
including anti-abortion groups, for supporting
him... Like a victorious candidate, Thomas paid a
round of thank-you calls to the conservative
groups that helped him win confirmation."
Justice Thomas' rigid adherence to right-wing
extremist views makes him perhaps the most pre
dictable Justice on the Supreme Court. When in a
criminal case before the Supreme Court the issue
involves the admissibility of a confession you
can be sure Thomas will vote that police
extracted it lawfully; if a search and seizure is at
issue, you can bet safely that he will vote that
the police did not violate the Fourth
Amendment; if the defendant claims that he was
denied counsel or received ineffective assistance
of counsel, Thomas will reject the claim; if the
issue is whether a prosecutor committed miscon
duct that violated the due process rights of the
ft Traditional Chinese Medicine
Don Everett White
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