About Flagpole. (Athens, Ga.) 1987-current | View Entire Issue (May 28, 2003)
GUEST ED continued from page 5 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 LICENSED ACUPUNCTURIST 16 Years of Experience ACUPUNCTURE • HERBAL CONSULTATION • TAI CHI TRAINING Acupuncture Center of Athens '06) 369-8855 • 2080 PRINCE AVENUE 6 FLAGPOLE.COM • MAY 28, 2003
