Hutchinson Reviews Judging Thomas

Judgment still pending on Clarence Thomas
Dennis J. Hutchinson
Chicago Tribune
September 5, 2004

Book Review:
Judging Thomas: The Life and Times of Clarence Thomas
By Ken Foskett (Morrow, 339 pages, $24.95)

For a decade after surviving a tumultuous fight for confirmation to the U.S. Supreme Court in 1991, winning in the Senate by only two votes, Clarence Thomas turned his back on what he called the "malicious" press and declined all requests for interviews. Undaunted, Ken Foskett of The Atlanta Journal-Constitution's Washington bureau buttonholed Thomas after Good Friday church services in 2001, and the door to Thomas' privacy opened a crack. A multipart, 18,000-word profile resulted, the paper editorially declared Thomas a hero for surviving a lifetime of travails, and Thomas agreed to further conversations, on and off the record, with Foskett.

Now we have a nearly 350-page story of Thomas' life, focused largely on his pre-Supreme Court career and not on the raft of opinions--many staking out boldly unorthodox positions--produced in his 13 years on the court. "I hope . . . readers will share my view," Foskett writes, "that the key to unlocking Justice Thomas's decision making is not dissecting the opinions but understanding the man who wrote them."

The man Foskett portrays has been driven all his life by anger, resentment and abandonment. Thomas' parents were divorced when he was an infant. He was raised by a stern and distant grandfather who sent him to segregated parochial schools, hoped he would become a priest and was chronically missing at central turning points in his life: college and law-school graduations, first marriage and even his swearing-in to the Supreme Court.

Thomas chafed at discrimination, not only based on race -- by whites and fair-skinned blacks (in grade school he was derisively called "ABC: America's Blackest Child") -- but also on diction (he grew up in Georgia speaking a regional dialect) and class (he felt shunned by bourgeois blacks). When Martin Luther King Jr.'s assassination in 1968 prompted an overnight burst of affirmative action by colleges and universities, he was an immediate beneficiary, but he felt he was being patronized and presumed to be inadequate. At Yale University Law School he was, Foskett writes in one chapter title, an "Ivy League Failure" who earned poor grades. He was turned down for the job he coveted with a leading Atlanta law firm.

John Danforth, then attorney general of Missouri, rescued Thomas by hiring him pursuant to a personal affirmative-action initiative, but Thomas longed for a job that would provide for his wife and small child, and the luxuries he coveted (a photo of a Rolls-Royce hung over his desk in Danforth's offices). To this day, Thomas told Foskett, "it's the best job I've ever had."

When Danforth was elected to the U.S. Senate, Thomas also went to Washington, and a succession of government appointments followed. But we are told that Thomas privately fumed over each, because they involved civil rights; he preferred tax law and resented being placed in positions where his race was a qualifying attribute. From the civil rights division of the Department of Education, he became successively head of the Equal Employment Opportunity Commission, a federal appellate judge and, at 43, a Supreme Court justice.

Foskett reports that Thomas was reluctant to accept the initial judicial appointment to the appellate court, "didn't want the job," and longed for a less controversial administrative position where he could "make the government work better," such as head of the General Services Administration (which manages and supplies federal buildings and properties). He nonetheless went on the court of appeals (replacing Robert Bork, who resigned after his failed nomination to the Supreme Court), and President George H.W. Bush named him a year later to the Supreme Court.

Although Thomas had been confirmed by the Senate several times to other positions, his nomination was controversial even before Anita Hill's charges of sexual harassment against him during the 1980s emerged late in his hearings. The man who placed a poster of Malcom X in his college dorm room had transformed into an outspoken and uncompromising conservative during his government service. He had bucked the civil rights Establishment, antagonized Congress in hearing after hearing and seemed to be the antithesis of the man he was selected to replace, Thurgood Marshall. Hill's charges devastated Thomas psychologically and almost killed the nomination until Thomas castigated the Senate Judiciary Committee for orchestrating a " 'high-tech lynching' " of his character and reputation.

Once confirmed, Thomas dug into his work, stonewalled the press, rarely appeared in public, almost never asked questions from the bench during oral arguments, and sulked. He was, in Foskett's words, a "Wounded Bear." In 1994, he told a group of black journalists: "I'm going to be here for forty years; for those who don't like it, get over it." Shortly thereafter he began to recover from his wounds and right his emotional bearings.

It's an uplifting story, but it may not be the whole story, or even the right story. In 1994, Jill Abramson and Jane Mayer reported in "Strange Justice: The Selling of Clarence Thomas" that others who worked with Thomas besides Anita Hill said he engaged in lewd conversation and had a vigorous taste for pornographic films. Based on three years of work, Abramson and Mayer's book also concluded that Thomas was far from the reluctant dragon portrayed by Foskett, " 'kicking and screaming' " at promotion. He was, instead, fiercely ambitious, calculated each move with an eye to the next step up the ladder and even spoke to friends of replacing Marshall on the Supreme Court.

Foskett does not challenge Mayer and Abramson. He acknowledges their book in a single paragraph but apparently feels that no direct rebuttal is warranted. His plea is what lawyers call confession and avoidance:

"Although it was plausible that Thomas said what Hill alleged, it seemed implausible that he said it all in the manner Hill described. Bullying a woman simply wasn't in Thomas's nature and ran contrary to how he conducted himself around others in a professional environment. And if the context wasn't as Hill alleged, was it fair to turn private conduct into a political weapon to defeat his nomination?"

As to ambition, Foskett dismisses Thomas' having the goal of a Supreme Court appointment during President Ronald Reagan's second term when Marshall's health began to fail noticeably, because Thomas privately concluded that he would never be nominated:

"'I'm too conservative. Even for these Republicans.'"

The statement rings somewhat hollow in light of Abramson and Mayer's findings and Foskett's catalog of important and well-connected friendships--white and black--Thomas was rolling up at the time, including C. Boyden Gray, the White House counsel and point man for judicial nominations. "Judging Thomas" will hardly be the last word on the subject. Thomas received a $500,000 advance last year from HarperCollins for his memoirs. Meanwhile, he remains hard at work at the court. Foskett, implicitly rebutting suggestions that Thomas' silence during oral argument betokens indifference to his job, reports that Justice Antonin Scalia "says Thomas, though reticent on the bench, is an animated and passionate debater in conference." Justice Ruth Bader Ginsburg adds reassuringly, " 'He is at all times well-prepared for our conferences . . . and routinely presents well thought-out statements of his position.'"

One of the most striking features of "Judging Thomas" is that two sitting members of the Supreme Court were willing to be quoted on the record about a sitting colleague. Foskett says, "More than three hundred interview subjects trusted me with their observations and reflections," but no one is likely to feel compromised by the outcome, least of all Clarence Thomas.

Dennis J. Hutchinson teaches constitutional law and history at the University of Chicago. His most recent book, The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington, which he edited with David J. Garrow, will be published in paperback this fall.

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