Clarence Thomas A Biography by Andrew Peyton Thomas Encounter, 661 pp., $29.95 IN RECENT YEARS THE PUBLIC PERCEPTION of Clarence Thomas has undergone a remarkable change. Few who closely follow the work of the Supreme Court now indulge the notion he isn’t up to the job. Seldom is it said that he relies excessively on his clerks or that (as the columnist Carl Rowan cruelly alleged in 1993) he is a “clone” of Justice Antonin Scalia. Even legal critics concede that Thomas, who at fifty-three is still the youngest justice, has fashioned a distinctive approach to judging worthy of respect–one that compels him at times to part ways with Scalia. Two months ago, Emory Law School professor David Garrow told Tony Mauro of American Lawyer that “the big news after ten years is that Clarence Thomas has emerged as a reputable, independence justice.” Thomas is already among the most important legacies of the president who nominated him, George Bush. Assuming a lengthy tenure, he could become one of the most consequential political figures of the postwar conservative movement. Race, that singular issue in our history, is inextricably bound up in the life and work of Clarence Thomas. This point becomes clear upon reading Andrew Peyton Thomas’s “Thomas: A Biography.” The author (no relation to Clarence Thomas) is an attorney in Phoenix. The seed for his biography was an article he wrote two years ago for The Weekly Standard, in which he praised Justice Thomas as “a man of unbreakable character and our greatest public servant.” Though largely favorable to its subject, the book is by no means an authorized biography. Clarence Thomas declined to be interviewed for it and discouraged sources from cooperating. Doubtless aware that full-scale biographies of justices are typically done after they have left the Court, Thomas may have felt the book was embarrassingly premature. It is also possible that Thomas–a man understandably wary of wrong perceptions–may have been unwilling to trust even a friendly writer. (Tony Mauro has reported that Thomas himself is now working on a book about his upbringing, a subject he often discusses in speeches.) Still, Andrew Thomas found plenty of material in the extensive public record about Clarence Thomas and secured interviews with scores of Thomas’s relatives, friends, and associates. The book follows Thomas from cradle to Court and all points in between, including the bitter Anita Hill saga. And race is the unavoidably constant theme. The narrative traces Thomas’s family roots back to slavery, the Civil War, and Jim Crow. Thomas’s ancestors almost certainly came from the Atlantic shores of West Africa and were brought in the eighteenth century to the Thomas and King plantations in Laurens and Liberty counties in Georgia. Clarence Thomas’s father descended from slaves on the Thomas plantation, his mother from slaves on the King property. Andrew Thomas quotes from a Clarence Thomas speech in which the justice described himself as “a descendant of the slaves whose labors made the dark soil of the South productive.” Correctly regarding that as polite understatement, the author reports in unremitting terms the hard lives slaves endured. For blacks, reconstruction was the same in Georgia as elsewhere in the South. Gains made by blacks after the war were quickly reversed. Whites were determined to keep blacks subordinate–with nightriders, the Ku Klux Klan, and, by the end of the century, the Jim Crow laws, which extended segregation. Between 1882 and 1923, Andrew Thomas reports, lynchings were more common in Georgia than in any other state. BOTH OF CLARENCE THOMAS’S GRANDFATHERS, “November” Thomas and Myers Anderson, were born in the first decade of the twentieth century. November Thomas’s son M.C. married Myers Anderson’s daughter Leola in 1947, when she was seventeen. Clarence, their first son, was born in 1948 in Pin Point, Georgia, a tiny town of two hundred residents, nine miles southeast of Savannah. The house that was the first home of the man who would become the 106th Justice came with a dirt floor and no electricity or plumbing. Thomas’s birth certificate identified the infant: “Pinpoint, rural, boy, colored.” The odds that Clarence Thomas would amount to much were dismal. His father, a philanderer, abandoned the family in 1949. Soon his mother found another man, but he had no interest in assuming responsibility for her children. That Thomas defied the odds– “I was a statistic waiting to happen,” he has said–owed much to relatives who insisted on right conduct and hard work and who, though not formally educated, understood the value of a good education. The most important person in Thomas’s life was Myers Anderson, an industrious man who owned his own business and rejected all forms of welfare. Anderson and his wife raised young Clarence, sending him to Catholic schools. Thomas was a good student and the first in his family ever to be graduated from high school. In 1967, having decided to become a priest, he entered Immaculate Conception Seminary in Missouri. Soon enough Thomas changed course, deciding against the priesthood. He left Immaculate Conception and wound up at Holy Cross. Graduating cum laude, Thomas then went to Yale Law School, finishing in 1974. Yale had instituted in 1969 an affirmative action admissions program under which up to ten percent of the seats in each class were set aside for minority applicants, who competed among themselves for these slots, not with all the other applicants. This was the first affirmative action program Thomas encountered. His acceptance of the program, writes Andrew Thomas, faded as he worried that it called into question the genuine achievements of those it professed to help. Thomas, who had voted for George McGovern in 1972, began to move to the right, finding merit “in the philosophy of self-help enunciated by Booker T. Washington and, in his own homespun way, Myers Anderson.” After Yale, Thomas worked in the Missouri attorney general’s office, for the Monsanto Corporation in St. Louis, and then in Senator John Danforth’s Washington office. In 1981 Reagan appointed Thomas to head the Education Department’s Office of Civil Rights and in 1982 named him chairman of the Equal Employment Opportunity Commission. In those positions Thomas grappled with a variety of law enforcement issues, many involving affirmative action. In 1985, he changed his registration from independent to Republican and grew more certain of his opposition in affirmative action. He was serving a second term as EEOC chairman in 1989 when Bush appointed him to the federal appeals court in Washington. IN 1991, when Thurgood Marshall stepped down, Thomas was appointed–after Anita Hill’s dubious charge of sexual harassment precipitated one of the most contentious confirmation fights ever. On the Court, as Andrew Thomas points out, Justice Thomas has proved the most dedicated advocate of originalism in constitutional interpretation–an approach that seeks to determine the original meaning of the Constitution by consulting its text and history. In a wide range of race cases, Thomas has endorsed positions consistent with colorblind law. It would be an understatement to say that Clarence Thomas knows something about what the law dryly calls “racial classification.” A racial classification is one that picks out or identifies a group, for whatever purpose, in terms of race. The slavery of Thomas’s ancestors required racial classification. So did segregation, which Thomas himself experienced growing up in Pin Point and Savannah. Those were hostile classifications, the former denying liberty altogether and the latter constricting it. When Thomas moved from Immaculate Conception to Holy Cross, America was embarking on the new era of affirmative action, which is still with us. As Thomas saw at Yale, affirmative action also requires racial classification, though its stated purpose is to help, not harm, its targets. ANDREW THOMAS CLAIMS that Clarence Thomas has benefited from affirmative action, and he offers statements
from friends and associates of Thomas in support of this claim. Clarence Thomas himself has always been reluctant to concede that he ever needed preferential treatment, though he has admitted to being preferred on account of his race. In this matter, however, what is important is what Thomas learned about affirmative action. And what he learned, starting at Yale, led him eventually to oppose preferences entirely. Thomas doubtless was capturing his years of reflection on this matter when, in a concurring opinion in the 1995 Adarand case, which involved the legality of a racial preference in a federal highway-construction program, he said such programs partake of “paternalism” and have “unintended consequences [that] can be as poisonous and pernicious as any other form of discrimination.” He continued: “So-called benign discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete without their patronizing indulgence. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.” Of course, “these programs” also discriminate against persons of the non-preferred racial groups. Discrimination of this kind was the claim of the plaintiff in Adarand (as in all other court challenges to affirmative action). But, as his opinion in the case shows, Thomas does not emphasize this discrimination as a ground of objection. His concern is with the programs’ ostensible beneficiaries. Thus, when the justices met to discuss Adarand, the author reports, Thomas “invoked his own life as a talking point” as he discussed how his grandfather hadn’t needed affirmative action to obtain contracts for his fuel-delivery business. One way to understand Thomas’s thinking about race is to say that he has reviewed all the racial classifications that have ever been used with regard to blacks and found that they constitute efforts to “experiment” upon blacks, whether for ill or good. And Thomas’s conclusion is that none of these experiments should be tolerated. Consider this passage from a 1986 speech at the Georgetown Law Center: “I am black. I am part of the grand experiment. . . . I have been both deterred and preferred by racially conscious policies. I have been the guinea pig for many social experiments on minorities. To all who would continue these experiments, I say please, ‘no more.’ Please leave me alone.” TO ARGUE FOR NO MORE EXPERIMENTS and therefore no more racial classifications is to end up in favor of colorblind law–law that does not distinguish on the basis of race. Thomas is hardly the first to advocate colorblind law. Emory Law School professor Andrew Kull has observed in his seminal book “The Colorblind Constitution” that from the 1830s to the 1950s “the American civil rights movement first elaborated, then held as its unvarying political objective, a rule of law requiring the color-blind treatment of individuals.” And they did so, as Kull writes, because they saw “the right of the individual to be treated without regard to race . . . as a moral and political end in itself.” Where did they get this idea? From the same place Thomas does: the Declaration of Independence, which asserted that all men are created equally in possession of the same rights. Thomas’s view, like that of the earlier colorblind-law advocates, is that to classify on the basis of race is to see people not as the individuals they are but to disregard and violate their essential humanity. No majority of the Supreme Court has ever said, either explicitly or by implication, that the Constitution is colorblind. In Adarand, Clarence Thomas stated on his own what only a few justices, in so many words, have ever said when he wrote that “under our Constitution the government may not make distinctions on the basis of race.” Andrew Thomas points out that the originalist Clarence Thomas did not engage in his “usual punctilious examination of the intentions of the Framers” in setting forth his position but went directly to the Declaration of Independence. Andrew Thomas doesn’t think that an originalist inquiry into the meaning of the equal protection clause can yield a colorblind rule. He says Clarence Thomas declined to make this kind of inquiry because “he knew” what the only result could be. But we don’t know what “he knew.” Thomas has not said, and while the preponderance of scholarship supports Andrew Thomas’s conclusion, some notable scholars, including Robert Bork and Michael McConnell (recently nominated to the Tenth Circuit), disagree. It bears noting also that Justice Thomas was writing a concurrence, a form that is more freewheeling, and not an opinion for the Court, in which he could not so easily have merely asserted the colorblind Constitution, but probably would have had to argue for it “in his usual punctilious” way. Nor does Andrew Thomas contemplate the possibility that Clarence Thomas sees a colorblind rule elsewhere in the Fourteenth Amendment–specifically in the privileges and immunities clause, which the Court long ago virtually read out of the Constitution. Dissenting in a 1999 case, Thomas examined the original meaning of that clause and found it protects “fundamental rights.” In calling upon the Court to reevaluate the meaning of the clause “in an appropriate case,” Thomas said, “we should also consider whether the clause should displace, rather than augment, portions of our equal protection . . . jurisprudence.” It would appear that Thomas could have much more to say in explaining why, “under our Constitution, government may not make distinctions based on race.” Andrew Thomas correctly sees Clarence Thomas as “one of the great intellectual and political rebels.” He has rebelled, in particular, and indeed in the deepest part of him, against the tendency to assume that blacks in political life think or should think alike, which is to say as liberals, especially on matters of race. In a 1998 speech to the National Bar Association, Thomas captured his worthy and historic rebellion well when he declared, “I come here today . . . to assert my right to think for myself, to refuse to have my ideas assigned to me…because I’m black. I come to state that I’m a man, free to think for myself and do as I please.” No reader of this book can doubt that he will continue to do that. Terry Eastland is publisher of The Weekly Standard. His books include “Ending Affirmative Action: The Case for Colorblind Justice” (1996). October 29, 2001 – Volume 7, Number 7
