WHEN George Bush nominated Clarence Thomas to fill the vacancy of retiring Supreme Court Justice Thurgood Marshall, I said, "Clarence who?" I think the question must have been on the minds of many people, because there's been a great deal of activity lately on the part of the press to come up with the answer.
People with disabilities, whose civil rights are often obtained through federal and state laws, are less curious about who he is and more interested in what he thinks. What Clarence Thomas
thinks and does could affect our lives in the not too distant future.
Thomas was once the Reagan-appointed head of the Equal Employment Opportunity Commission until he became a federal appeals court judge in 1990. The EEOC was set up to end job discrimination based on race, religion, sex, age, color and national origin. Discrimination on the job against persons with disabilities was more extensively regulated by the 1973 Rehabilitation Act, Section 503, and now by the Americans with Disabilities Act of 1990.
If Thomas is confirmed to serve on the high court, it is not a stretch of the imagination to believe that someday a decision involving the rehabilitation act or the disabilities act could turn on Thomas opinion. According to a number of disability rights advocates, certain business groups are already lining up to challenge the yet-unpublished regulations of the Americans With Disabilities Act in federal court.
Groups representing blacks, women and other minorities have complained that under Thomas' seven-year tenure at EEOC, the agency was timid and ineffective and permitted cases to pile up. In testimony given before the Senate Judiciary Committee on Feb. 6, 1990, prior to his confirmation as a federal judge, it was revealed that more than 13,000 age discrimination cases were allowed to expire, forcing Congress to pass a law restoring the right of the victims to bring private suits. Thomas told the Senate panel that he accepted responsibility for the mess because it happened on his watch.
Judge Thomas arrives on the doorstep of the all-powerful Supreme Court with little more than a Bush endorsement, a rather lackluster run as a right-wing bureaucrat, and less than one year's experience on the federal bench.
Where Thurgood Marshall had, at the time of his appointment, advanced the cause of civil rights with his 1954 anti-segregation case as an NAACP attorney, Clarence Thomas wrecked the EEOC in terms of enforcement, say his critics.
In the coming decade, disabled Americans will have to rely more heavily on test cases in state and federal courts in order to secure their rights as first-class citizens. To believe that discrimination against the disabled with regard to employment, housing and other necessities of life will end through the good intentions of others is to believe that a Nixon-Reagan-Bush Supreme Court will pioneer landmark decisions advancing civil liberties.
The U.S. Supreme Court is the last stop on the legal journey to redress a grievance against a discriminatory policy. The process of justice at the Supreme Court level works best for all minority groups when it employs the mechanism of "stare decisis," the doctrine that rules laid down in previous decisions should be followed unless they contravene the ordinary principles of justice.
Many of the new laws which protect the disabled against discrimination are applied, in the absence of specific regulations, by using what is called the "history of the legislation," a legal interpretation based on intent of the authors. Without a strong emphasis placed on "stare decisis," many discrimination cases involving the disabled will be thrown out.
A Thomas appointment, many believe, will mean a continued move away from judicial review based on previous decisions and toward a conservative Republican agenda to overturn decisions which preserve and strengthen personal freedoms. Anti-discrimination cases brought on behalf of the disabled require a somewhat more radical perspective and a deeper insight when reviewing this complex and often misunderstood segment of our society. The task demands the best, not a "Clarence who?".
Edward John Hudak writes from Franklinville, N.J.