Thomas Shows Us Why the Fight Mattered

GARLAND L.THOMPSON

February 01, 1992|By GARLAND L.THOMPSON

The last paragraph of a recent Wall Street Journal column by L.Gordon Crovitz makes a telling point about Supreme Court Justice Clarence Thomas.

The high court had just issued an opinion sharply restricting the application of the Voting Rights Act in the South and Justice Thomas was part of the 6-3 majority, but Mr. Crovitz was not talking about that. He had completed an analysis of the first majority opinion Justice Thomas himself had written, in a much-less-publicized tort claims case.

Noting the ''activist'' approach implicit in the justice's version of judicial ''restraint'' and toting up the 25 times Justice Thomas joined Antonin Scala in right-wing opinions -- more than any other justice -- Mr. Crovitz wrote,

''Justice Thomas already has done more than solidify the intellectual conservative wing of the court. It also seems likely that his lifelong career on the Supreme Court will be a constant reminder to his critics of why they went to such lengths to block his nomination.''

Let us beg to differ here.

We critics knew exactly why we went to such lengths to stop Clarence Thomas from replacing Thurgood Marshall on the highest court in the land. Justice Thomas, who now has quietly acquiesced in a decision in which that highest court plainly refused to enforce the law as Congress wrote it and as its own prior opinions demanded, has acted just like we critics said he would.

Atrociously.

A lifelong career cast in this mold should instead be a constant reminder to Justice Thomas' supporters of just how desperately bad a choice he was.

Count out Jesse Helms. Never mind Strom Thurmond. Those old rhinoceri knew exactly what they were pushing for. Count out George Bush, the third president in U.S. history to veto a civil-rights bill.

Do not, however, count out the masses of black Americans Mr. Thomas purported to speak for when he denounced the Senate for questioning his behavior toward Anita Hill. Conspiracy against a black man, he said. High-tech lynching, he said. Stereotypes, he said.

Justice Thomas, safely on the court, just counted them out himself, but don't you do it. The opinion, written by Justice Kennedy in Presley v. Etowah County, dismissed complaints by Alabama blacks that white elected office holders illegally changed the duties of office to keep black officials from exercising the power they were elected to wield. John Paul Stevens' trenchant analysis showed that the majority was clearly masquerading, claiming to support the letter of the law but permitting its intent to be nullified.

Clarence Thomas was not on Justice Stevens' side. The Justice Department was, but the court wasn't hearing its plea. If that sounds uncomfortably like the bad old days when segregation was being written into the bedrock of Southern consciousness, look back to 1896 when Plessy v. Ferguson was decided. There, the Supreme Court led federal and state courts across the land to simply refuse to support the Constitution where it supported black Americans. Painful image? Check the facts.

During the confirmation hearings, President Bush said he was ''gratified'' that national opinion polls showed many in the black community had swung to support nominee Thomas. Civil-rights critics, who had fought bitter battles to secure the rights nominee Thomas got choked up recalling on camera, had attacked him. Decrying his record as the Education Department's civil-rights chief and at the Equal Employment Opportunity Commission as the track of an enemy, the #i civil-rights leaders had called him a turncoat.

But once the nominee accused the senators of race-baiting, blacks who had been on the sidelines seemed to weigh in on his side. Right-wing supporters allowed as how the civil-rights leaders were out of touch with the main mass of blacks. Journalists who should know better kept saying the civil-rights leaders really didn't ''speak for'' their constituents. Some younger blacks said the civil-rights logic was ''outmoded.''

Now, Justice Thomas has shown the colors his chief critics had thought they spied in the first place. Confronted with a bona-fide civil-rights case, major in proportions and unambiguous in its implications, Justice Thomas went with the right-wingers, voting curtail the voting power of the blacks still struggling for equality in small, rural communities like the one he grew up in. A Sun colleague, surveying the hostility we critics threw at nominee Thomas during the confirmation battle, once called our act an ''excommunication.''

To those well-meaning whites who thought Justice Thomas' humble background would prompt him to display a special sensitivity on the court, and to those blacks who seemed so troubled over the no-holds-barred way Mr. Thomas' critics fought his nomination, it's time to paraphrase rapper Cool Moe Dee: How Ya Like Him Now?

Garland L. Thompson writes editorials for The Sun.

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