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the Body Politic
Vol. 01, No. 09 - September 1991, Page 7
Copyright © 1991, 1998 by the Body Politic Inc.
Is Judge Clarence the New Thomas 'A Becket?
Headline June 27, 1991
Thurgood Marshall Resigns
By Anne Bower
During the final week of the 1990-91 Supreme Court session, a term that saw the infamous Rust v. Sullivan decision, Justice Thurgood Marshall, only black to ever serve on the Court, resigned. Declining health may have been the reason, but there was speculation among court watchers that the complexion of court decisions in the last few terms had driven Justice Marshall to believe that he could no longer contribute to the cause of justice in America.
The cumulative evidence of Thomas' record paints a portrait of a jurist who does not respect the rule of law and is not committed to preserving the rights of the individual.
After a brief review of candidates, President Bush nominated a 43 year old Judge, Clarence Thomas, to serve as the second black on the Supreme Court. Within a few days, NARAL released a statement warning that this man could spell the absolute death knell, not only for legal abortion, but possibly for many forms of birth control.
NARAL asserted that the Thomas nomination,"...is part of an explicit strategy first implemented in 1980 to take away the constitutional right to choose abortion by remaking the Supreme Court through the appointment of Justices who will vote to overturn Roe v. Wade. Judge Thomas' writings, speeches and professional activities confirm that he has passed the anti-choice litmus test -- as has each of the four Supreme Court appointments since 1980."
NARAL based its opposition to the nomination on the Judge's writings and speeches, for unlike David Souter, there was a paper trail, which lead to four main areas of concern.
- His praise of Natural Law.
- His disparaging the right to privacy secured in Griswold v. Connecticut.
- His part in the White House Working Group on the Family report.
- His association as editor on the board of the Lincoln Review.
In a speech to the Heritage Foundation in 1987 Clarence Thomas tackled the topic of Why Black Americans Should Look to Conservative Policies. He admitted that his initial enthusiasm as part of the Reagan team had dimmed because their approach to civil rights and social policies was "decidedly negative." He complained that he was greeted with scorn from many quarters and so were his friends; among other conservatives he was "tolerated but not necessarily welcomed."
The speech continued with a litany of complaints which, of course, included the media's coverage of the party agenda, but ended with an appeal to conservatives to open the door to their party."Conservatism's problem and the problem of the post-Reagan Republican Party, the natural vehicle for conservatism, is making conservatism more attractive to Americans in general."
Mr. Thomas suggested that Conservatives emphasis their devotion to standards and principles starting with the"self-evident truths of the Declaration of Independence which he claims were founded on principles of Natural Law. He stated that Martin Luther King appealed to natural law and cited a recent essay by Lewis Lehrman in The American Spectator as a "splendid example of applying natural law."
The Lehrman article, The Declaration of Independence and the Right to Life: One Leads Unmistakably from the Other, admonished the reader that "...the future of the world now depends upon the future of American conservatism -- and therefore upon the true principles of the American Republic" which, of course, are best interpreted by, at that time, Attorney General Edwin Meese (and Lew Lehrman).
Mr. Lehrman contends that the Declaration of Independence is the first law of the land and its principles as articulated by Supreme Court Justices and Presidents, are what guide the Constitution. Lincoln used the Declaration of Independence to abolish slavery and, according to Mr. Lehrman,"... we may now say that the 'durable' moral issue of our age is the struggle for the inalienable right to life of the child-in-the-womb -- and thus the right to life of all future generations."
Those working for reproductive rights are portrayed as slave owners with, of course, the "foetus" as chattel. As usual, the fetus is described as innocent life, in contrast one supposes, to the woman, who must therefore be guilty. Of what, we are not told.
In reference to the Roe v. Wade decision, Mr. Lehrman calls that a,"... conjured right to abortion.... a spurious right born exclusively of judicial supremacy with not a single trace of lawful authority..."
Constitutional scholars may debate the merits of this premise, but the general reader can easily grasp one glaring point. Nowhere in this article is the word woman found. There is much talk about rights of people and fetuses but the woman's right to life, liberty, and the pursuit of happiness is invisible.
Apparently Natural Laws do not apply to women.
If this line of reasoning is what Justice Thomas will be using to consider Constitutional questions, we can expect anything from him because natural law is no guide. Its flexibility could be used to support public nudity, since that is the natural state of man. It has been used to deny women access to the bar because their "natural place" is in the home.
Griswold V. Connecticut
In 1965 the Supreme Court threw out Connecticut's anti-birth control law and established a right to privacy in marital relationships. The Roe decision is built on and a logical extension of Griswold. In an article, Civil Rights as a Principle Versus Civil Rights as an Interest Mr. Thomas discussed Justice Goldberg's "discovery, or rather invention" of the right to privacy, which he does not believe is found in the Ninth Amendment.
In fact he views the Ninth Amendment which states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" as a dangerous weapon which a crazed Court could use to run amok over society."The Court could designate something to be a right and then strike down any law it thought violated that right."
Then, a demented Congress, would abandon its sense and use its powers to protect these "invented" rights.
Throughout Mr. Thomas' writing there runs a thread of antagonism towards and disparagement of the system of checks and balances. In this article he extols limited government, and holds up Oliver North, as a great champion of that cause.
Attacking Supreme Court decisions, ridiculing the Congress, and maligning the media was standard operating procedure when Mr. Thomas worked and spoke for the Reagan/Bush team.
The Family Report
In February of 1986 Attorney General Meese as Chair of the White House Domestic Policy Council, asked Gary Bauer, Under Secretary of Education, to head an administrative working group that would study how government at all levels could be more helpful to American families. After seven months of work, a report, The Family: Preserving America's Future, was submitted. Clarence Thomas, as Chair of the Equal Employment Opportunity Commission sat on this panel.
Space does not permit a full review of the report. It deserves its own article. Suffice it to say this report embodies a view of family life which belongs in the Norman Rockwell era, but this time, the Reagan White House was wielding the brush.
This report portrayed President Reagan as the Knight in the White Hat who saved the American Family -- father, mother (preferably not working), plus 2.5 kids. The villains are government programs, legislators, judges who inadvertently "touched off a wave of illegitimacy when they minimized the power of the States to legislate on that subject", and the new Arch Enemy, day care.
Nothing in this report is specifically attributed to Mr. Thomas. Assumably, he attended some of the meetings, listened to some of the testimony, and signed off on the final report. As only one of twenty-two members, he would have little impact -- and would have wasted his time if he cared to dissent.
The final work is a sermon -- not a government document, and has little relevance to how most people live today. The report suggests that welfare is the cause of child poverty. Even though the statistical evidence doesn't support the notion, we all know that welfare encourages teenage girls to get pregnant.
The solution -- chastity and limiting AFDC benefits to minors who agree to continue to live with their parents. The suggestion is also strongly made that no government program should "provide incentives for sexual activity by teens." Could that possibly include Federally funded birth control clinics?
Teens who become pregnant, probably because they will be unable to afford birth control, should just give up their babies for adoption.
To facilitate this process, states might abolish laws that prohibit a couple from supporting a pregnant baby donor. This will not stop girls from getting pregnant -- just change who pays the bill.
The issue of abortion is discussed in the section on Family Economics which castigates the Supreme Court for its decision on what constitutes a family. As for the Roe decision the report states,"The Court has struck down State attempts to protect the life of children in utero, to protect paternal interest in the life of the child before birth, and to respect parental authority over minor children in abortion decisions."
Nowhere is the right of a woman to plan a family or choose not to have one recognized. That would be an un-Reagan un-Family thought.
Clarence Thomas' ideas may not be in this document, but his name is on it. As a good lawyer, he should read what he signs.
From 1981 to 1089, Mr. Thomas served as a member of the Editorial Advisory Board of the Lincoln Review, a quarterly journal which offers a conservative African American perspective on public policy issues.
NARAL states that a review of this publication for the years Mr. Thomas served, reveals that the journal has published several virulent attacks against the Roe decision and failed to print any pro-choice articles.
One article by Patrick Monaghan, Substantively Due Processing the Black Population is a scurrilous attack, not on principles and programs but on persons.
Justices Brennan and Marshall are accused of selling out their heritage like the "Kapos" recruited from among Jewish prisoners in the Nazi death camps."Unlike the 'Kapos', no immediate threat of death was upon them, only the glitter and glamour of the traditional 30 pieces of silver for those who sell their own and the adulatory accolades the elite media savants reserve for their servants."
Naturally, Faye Wattleton comes under attack as "erudite and deadly"."She is the 'leader' of an organization that funds the killing of unborn children. When it comes to destroying black babies, Planned Parenthood accomplishes in reality the puff and smoke of the Ku Klux Klan. When fashionable American leftist quackery kills, whether through Jim Jones or Harry Blackmun, the victims are always disproportionately poor and black."
Clarence Thomas did not write this article. He may never have seen this article. Hopefully, he does not share the views of the writer of this article.
The pro-choice community organized to oppose Judge Thomas' nomination rapidly, but other groups have joined the "chorus of concerned."
The Alliance for Justice Preliminary Report reviewed the Judge's opinions while on the Court of Appeals which showed that when individual interest
were pitted against that of group interests the score wasIndividual (3) Group (22)
Since the Judge has only served on the Court of Appeals for a while, the few rulings may not reflect his judicial philosophy. Unfortunately, his hearings have lent little illumination on that topic either.
People for the American Way has been very active in opposing Judge Thomas' appointment. In the September issue of the Activist the organization states,"Clarence Thomas is a controversial and inexperienced conservative who, by all indications, would forge an even more conservative Supreme Court. Our rights and liberties are at stake."
People For voiced concern not only about the Judge's views, but his inexperience."... he has served only 17 months on the appellate court, not long enough to amass a significant record, and has written only 17 majority opinions in mostly non-controversial cases. In several cases, Thomas dissented from Court rulings and tried to close the Courthouse door on environmental and health claims."
The American Association of University Women came out against the nomination. President Sharon Schuster said,"We must oppose a nominee who has been hostile to the economic survival of working women. The cumulative evidence of Thomas' record paints a portrait of a jurist who does not respect the rule of law and is not committed to preserving the rights of the individual. Thomas directed EEOC activities based on his own beliefs, rather than abiding by federal law."
Dr. Robert L. Maddox, Executive Director of Americans United for Separation of Church and State, expressed deep concerns about what Judge Thomas would do if faced with a Church/State case, because when he was asked a question about the Reagan school prayer initiative at a Heritage Foundation Symposium he responded,"My mother says that when they took God out of the schools, the schools went to Hell. She may be right."
AU has not taken a formal stand against Judge Thomas but they lobbied hard for the Senators to ask tough questions.
One of the strongest statements against the Thomas nomination came from the Congressional Black Caucus.
The Caucus took their stand because,"...we have had the unique opportunity to interact with him and observe his record through the exercise of our oversight of those agencies within the Executive Branch.""The Clarence Thomas record speaks for itself. It reflects blind commitment to an ideology which has caused him to misinterpret, misconstrue or ignore statutory laws with which he disagrees. He has revealed an allegiance to views about the fundamental rights embodied in our constitution which are inimical to the interests of African Americans and the vast majority of the American public."
The Black Caucus makes the point that, as a people, they have a legacy of great leaders who defied the odds of a tough start in life, and gave much to the nation -- but that does not automatically make those leaders qualified to serve on the Supreme Court.
The NAACP, the National Women's Political Caucus, the Women's Legal Defense Fund, and the AFL-CIO also rejected the nomination.
The New Becket?
The Senate has had its day and the Judge has had his say. The story seems to be, "Now that I belong to the Church, I abjure all my previous statements. I was a different man when I worked in the Executive Branch. Today, I exist to serve the Court. But, of course, as a Judge, I can't reveal my positions on anything."
Testimony is finished and the Senate did not call Professor Joel F. Handler of California University. Fortunately, the Professor had his say in a letter to the New York Times 7/23 reprinted here in its entirety.Your July 7 article about Judge Clarence Thomas' intellectual journey on the path of self-help reports his oft-repeated quotation about his sister, then on welfare. "She gets mad when the mailman is late with her welfare check. That's how dependent she is." The rest of the quotation condemns her children: "What's worse is that now her kids feel entitled to the check, too. They have no motivation for doing better or getting out of that situation.This is an appallingly callous statement and contrary to the facts. As reported in The Los Angeles Times on July 5, Judge Thomas' father deserted the family when the children were small. The mother supported the family by picking crabs at 5 cents a pound. When a fire destroyed their home and belongings, the mother, who could no longer support the children cleaning houses at $15 a week, sent the boys -- not the girls -- to live with their grandfather, an independent small-business man.Judge Thomas' sister, Emma Mae, stayed home and graduated from high school. She got married, and had children, and then her husband deserted her. While the judge was attending Yale Law School, she supported her family with two minimum-wage jobs. Her mother worked as a nurse's aide at the local hospital, and an aunt took care of the children.Then the aunt suffered a stroke, and Emma Mae Martin had to quit work to take care of her. This was when she went on welfare. She was on welfare about four and a half years. Now she works as a cook at the local hospital, reporting to work at 3 AM. She has three children. One works as a carpenter; one was just laid off, and the 15 year-old is in school.This is hardly a story of welfare dependency. The women of this household worked hard at low-paying jobs, took care of one another and raised their children. It is a story not only of race and poverty, but also of sexism -- desertion by husbands, lack of child support, giving boys, not girls, the opportunity to get ahead.And when the elderly aunt needed care, it was the adult female relative -- again, typical -- rather than the men who assumed the burdens. This was when Emma MaeMartin had to go on welfare. What was she to do? Can you imagine the long-term care that might have been available to an elderly African-American woman in rural Georgia?Ms. Martin then left welfare, again works hard, and her three children are in the labor market or in school. In other words, in the face of great odds, she did exactly what Charles Murray and other conservatives have asked: she completed school, she worked, she got married. She has suffered because of irresponsible men, male preferences, lack of an effective child-support system, lousy jobs and a lousy health-care system.What can we say about her brother? He had the advantages. Yet he cruelly distorted her situation and publicly humiliated her, and her children. Is this the kind of person we want as Justice of the Supreme Court? In contrast, Emma Mae Martin has retained her dignity, her tolerance and generosity -- qualities one would like to see in a Justice. It's too bad she was not nominated for the Court.
Professor Handler has a point.
We can hope our fears are unfounded and Judge Thomas will have a judicial conversion at the Supreme Court. Perhaps in future years, the Judge will be revered as another black saint.
One prayed to by women, minorities, and the poor -- not men in expensive suits and gilt-plated boot straps.
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This archive is hosted by
Political Research Associates on its Public Eye website
The material posted here is not current