Arguing Thomas' case again Speech: An invitation to speak raises anew the controversy surrounding Supreme Court Justice Clarence Thomas.

July 28, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Justice Clarence Thomas plans to make one of his rare ventures from the cloistered privacy of the Supreme Court tomorrow, and the mere prospect of his appearance on a public platform has again put him in the middle of controversy.

Thomas is scheduled to be the featured speaker -- after being invited, uninvited and then welcomed by some -- for the awards luncheon at the convention in Memphis, Tenn., of the National Bar Association, the nation's largest group of black attorneys. Last night, the invitation was still being debated.

On Sunday, the association's Judicial Council, made up of association members who are judges, voted in Memphis to "reconfirm its decision to disinvite him" to speak.

"It makes no more sense to invite Clarence Thomas than it would have been for the National Bar Association to have invited George Wallace for dinner the day after he had stood in the schoolhouse door and had shouted 'Segregation today and segregation forever,' " says former Circuit Judge A. Leon Higginbotham Jr. The retired jurist is leading the drive to withdraw the invitation because he is outraged by Thomas' opposition to affirmative action programs.

But the association president, Randy K. Jones, a federal prosecutor in San Diego, said yesterday that Thomas is "still speaking, and we're preparing for him to speak."

The association leaders will not veto an invitation made by one of its groups, Jones added, and that invitation by the judge who heads the Judicial Council stands.

Bernette J. Johnson, a justice of the Louisiana Supreme Court, the association officer who extended the invitation, explained her decision in a letter to the group's leaders.

"It is difficult to dialogue," she said, "with someone who has skewed and hostile views on issues we consider fundamental. [But] progress must sometimes be achieved by engaging the most abhorrent of foes."

Johnson "is not inclined to rescind the invitation," Jones said yesterday. "I haven't heard anything to change that. Justice Thomas' speaking is not intended to be an endorsement of him or his philosophy. He will be a speaker -- nothing more."

Thomas is in Memphis today, and court aides said he plans to go ahead with the luncheon talk. The C-SPAN cable network will broadcast the speech on a delayed basis tomorrow and repeat it twice on its "America and the Courts" program Saturday.

None of Thomas' eight colleagues arouses the kind of protest that can ensue when Thomas gets an invitation to make a public speech. Only the late Chief Justice Earl Warren's public speeches came close to provoking the kind of outrage that Thomas can almost routinely expect.

Almost commonplace

The sometimes emotional dispute within the bar association about Thomas over the past several weeks is almost commonplace for the justice. The youngest member of the court -- he turned 50 in June -- Thomas has been vilified by critics through his seven years as the nation's highest-ranking black official.

His practice of voting on the most conservative side of major Supreme Court cases -- especially on civil rights issues -- keeps the controversy surrounding him fresh, especially among black observers and organizations.

Although there have been some recent signs that he is voting less consistently with the court's most vocal conservative, Justice Antonin Scalia, Thomas' voting pattern is, if anything, becoming more conservative overall than Scalia's, observers say. It is Scalia who has occasionally turned ever so slightly to the left.

During the recently ended term, the two conservatives split four times on 5-4 rulings -- the first time in their years together that they have divided on such closedly contested decisions.

Thomas seldom confronts directly his critics outside the court; although he does make public appearances, they are usually before friendly audiences. He is considered to be the most withdrawn justice -- a withdrawal that his associates say is self-protective.

Twice before, he has been invited to speak, and then uninvited.

On one of those occasions, he was reinvited and went ahead with a speech to a parent-teacher organization in Prince George's County.

On the other, he chose not to appear at a youth festival in Delaware, so as not to disrupt it when the Maryland chapter of the National Association for the Advancement of Colored People protested his appearance.

The justice's topic tomorrow has not been disclosed and, following his usual practice, he will not release the text of his remarks. Whatever he says, however, the fact that he will speak at all has aroused critics who will be in Memphis -- including some who are hostile because of his opposition to affirmative action programs.

Demonstrations planned

A. J. Cooper, a Washington attorney and former bar association officer who has publicly defended the Judicial Council decision to "disinvite" Thomas, said, "There are plans for demonstrations if he attempts to speak."

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