Sunday, July 15, 2007

More on Clarence Thomas

The email exchange I had with a friend about Clarence Thomas, not surprisingly, elicited some strong opinions on both sides -- see below.
Let me make clear that I don't doubt he's a perfectly nice guy to have a beer with and I applaud the work he does personally to help disadvantaged kids.  I also have a great deal of respect for what he's overcome in his life and am not suggesting that his success is due solely to racial preferences -- most credit is due to his own smarts, hard work, good decisions and good fortune.  (As a jurist however, I think he's a radical activist who's out of touch with reality and has little respect for precedent -- in short, precisely the type of jurist he and other conservatives rail against.  Talk about hypocrisy!)
As for his views on racial preferences, I don't think he's necessarily a hypocrite for benefitting from racial preferences numerous times to reach the pinnacle in his profession and then opposing those very preferences.  But the apparent massive contradiction does impose an obligation on him to explain himself -- which he has utterly failed to do.  (And I'm not applying a double standard to him -- I would feel similarly if a white Supreme Court justice had benefitted from a legacy policy to get into Harvard and then later ruled that such policies were unconstitutional.)
In my earlier email, I suggested that Thomas wouldn't be a hypocrite if he'd said when offer the nomination to the Supreme Court:
I appreciate the offer Mr. President, but you and I both know that there are other vastly more experienced, accomplished and distinguished jurists with equally reliable conservative credentials. It would not be fair or consistent with my beliefs for me to leap over at least 100 such men and women simply because I'm black.
I wouldn't really expect Thomas -- or anyone -- to say that, in part because we're all human, but also because every successful person got to where they are thanks to various types of preferences and/or good fortune that they had nothing to do with.  Look at me: I don't for an instant deny that whatever success I've had is largely due to the fact that I've been the beneficiary of every conceivable type of good fortune imaginable: I was born in the U.S., into a happy marriage and loving family, had great parenting by very well educated parents, never wanted for anything important, attended great schools, etc.  In fact, because I've been the beneficiary of such good fortune, I feel that I have a special obligation to try to do some good in the world and give other people the same opportunities I've had.
I suspect nearly every candidate for the Supreme Court has a story of good fortune similar to mine, so Thomas might rightly have accepted the Supreme Court nomination by saying to himself: "I know that I'm getting a special preference here because of my race, but everyone else on the short list has had enormous good fortune that I never had, in some cases overt preferences like admission to a into top college in part because their parents went there -- not to mention the huge advantages white males have in our society.  Thus, the racial preference I'm getting is just leveling the playing field a bit."
Fair enough -- but then why wouldn't Thomas support similar programs for other minorities so their playing field might be leveled a bit as well?
Even if he didn't, I wouldn't say Thomas was a hypocrite (though I'd certainly disagree with him), if he merely said something like this:
Yes, I benefitted from racial preferences.  In fact, I likely wouldn't have gotten into the college (Holy Cross) or law school (Yale) that I did, nor would I have been nominated to the Supreme Court were it not for my race.  That being said, I oppose racial preferences for two reasons:
1) I believe they are an unconstitutional form of reverse discrimination and my job as a Supreme Court justice is to interpret and apply the Constitution impartially, regardless of my own personal experience; and
2) While I benefitted from such programs, I think they do more harm than good, stigmatizing the supposed beneficiaries and putting them in situations in which they're over their heads, etc.
Thomas is saying 1) and 2) -- what's missing is the first part, acknowledging how much he benefitted from such programs.  That's why I think he's a hypocrite.  He appears to think, "I got to where I am without the benefit of racial preferences, so why don't other minorities stop complaining, suck it up, work harder and play by the rules and then they too will achieve success like me?"  From someone who benefitted so much from racial preferences, this is the height of hypocrisy.
Without further ado, here are some of the comments I received:
1) From Josh Porter:
I have to agree to disagree here. I had the fortunate experience, in the spring of 2002, to spend an entire afternoon with the Hon. Clarence Thomas. I was spending a semester in Washington through a program at my alma mater, Holy Cross, and Mr. Thomas -- being a fellow Crusader alum himself -- makes sure to meet with the students interning in Washington for a few hours every semester (!). The afternoon was one of the most memorable, surreal experiences of my four years at school. (First, I must add, he was just an overall great guy to spend an afternoon with, and his deep, bellowing laugh is simply unforgettable!) 
It's funny reading that e-mail exchange below, because there was something he said to us that speaks directly to what you're talking about. One of my fellow interns and friends, a black student, asked Thomas if he ever feels hypocritical with his politics, given (just as you said) that he is the product of social programs that helped him to that seat in the first place. To paraphrase, Thomas said something along the lines of, 'don't you think it would be more hypocritical of me to rule from this bench on something I don't truly believe in, simply because it would be paying back to those who help put me here?' He went on to say, on affirmative action, that he doesn't believe it does a black student (or employee, etc.) any good to put him in a position where he's in over his head, just so he can 'keep up' with other white people in his situation. He may not have the skill set to compete with his new peers, and that's not doing anyone any good. 
Now, whether you agree with that or not is not the issue here, neither is whether Thomas himself is the result of that. That's what he believes. So wouldn't he be more of a hypocrite to go against that belief, in the name of not "pulling up the ladder" behind him?
I asked: "Did he acknowledge that his race got him to where he is? That's my main beef with him."  Josh replied:

He DID acknowledge that certain programs got him to where he is (he mentioned that he may not have gotten into Holy Cross), but, interestingly, said that there were many times when he felt like he was in way over his head. So in a way, he's a product of these programs, knows it, and STILL thinks they're not good. Again, whether you agree or not, it is an interesting perspective.

This comment appears to undermine my point above, but it's one thing to say something off the record to a group of students and another to say it publicly.  Can anyone point to an instance in which he publicly talked whether he thinks he benefitted from racial preferences (or not)?
2) From Eric Osberg (VP and Treasurer of the Fordham Foundation):
You veer into dangerous territory when you try mind-reading, especially when you put your money on the line! (Your quote below: “I would bet my last dollar that he refuses to allow the thought to ever enter his head that he wouldn't be where he was were it not for precisely the kind of racial preferences that he so passionately tries to eliminate -- the cognitive dissonance would be too great to bear.”) 

The Washington Post had an interesting review of the recent book about Thomas, Supreme Discomfort: The Divided Soul of Clarence Thomas. The reviewer writes:

The book's main flaw is its failure to give us more of one particular Thomas: Justice Thomas. For a biography of a jurist, Supreme Discomfort is surprisingly short on Thomas's legal decisions and philosophy. For instance, Merida and Fletcher repeatedly mention that Thomas benefited from affirmative action during his rise only to oppose it when in power. But Thomas explained that seeming inconsistency in a 2003 dissent criticizing governmental affirmative action. In Grutter v. Bollinger, he argued that affirmative action stigmatizes all blacks, who are either promoted above their abilities or subjected to the unfair suspicion that they would not be where they are absent a racial preference. Regardless of the category into which Thomas would put himself, this response suggests how even beneficiaries of affirmative action can oppose it without hypocrisy.


I haven’t yet read the book, but I’m pretty sure this review isn’t the first time I’ve read that Thomas has thought a great deal about how affirmative action and his own race have affected his career. And it’s certainly a stretch for anyone to write that one’s “limited public comments” can “suggest” what’s going on in a person’s head.

I replied:

I'm not arguing, as many of my Democratic brethern do, that he's a hypocrite for opposing racial preferences -- I'm arguing he's a hypocrite for not acknowledging that he benefited from these preferences and then opposing them. Can you point me to a single instance in which he's done so?

He replied:

I suppose you're right on that point -- the few public comments I could find make clear that he doesn't wish to call himself a beneficiary of affirmative action.

But I do think you're being unfair to Thomas, whether or not you're definitionally correct in using the word "hypocrite." I'm probably not going to persuade you of that, given that the other (good) arguments below didn't persuade you! But to be forced to demean oneself and one's accomplishments, by qualifying them, in order to be taken seriously is a bit of a catch-22.

More importantly, I think the background of a justice and his personal policy preferences (whatever they are) should be irrelevant to the decision at hand, which should be based on the constitution and the law.

And justices should be evaluated accordingly. I believe he has a clearly articulated constitutional rationale for his affirmative action decisions, and I don't think he should be forced to reconcile it with his own background or even his policy views -- doing so veers into the "courts as policymaker" territory that we are trying to avoid when we complain about activist judges.

So I don't see the merit in the "nuance" you seek, in which Thomas would have to explain how he reconciles his constitutional views with his personal opinions, his race, his biography, etc. Good judges spend their careers trying to suppress those extraneous factors, to focus solely on the law in their decisions, so I don't see why we should encourage any such co-mingling -- other than that it might be intellectually interesting for us as observers.

To which I replied:
Fair points, but Thomas himself uses his own experiences to justify his views, as you pointed out in your first email: he noted how he's observed blacks at schools over their heads, suffering from others' viewing them as
charity cases, etc. to rationalize that affir action does more harm than good.

You don't really think judges simply impartially apply the law, blocking out their personal feelings, political views and life experiences, do you?
Finally, he replied:
I think they should try to, and we should encourage rather than undermine it.  Though you're right, I'm sure, that it's impossible for any of them to keep to that stardard all the time. (And I'm sure that some try harder than others.)


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