Why Clarence Thomas Owes African-Americans an Apology

clarence thomasWhen Ginni Thomas — the Tea Partying wife of U.S. Supreme Court Justice Clarence Thomas — left Anita Hill a voicemail message asking for an apology, she got it all wrong. It’s really Clarence Thomas who owes the apology, to the black community that is.

During his confirmation hearings in 1991, America was introduced to Thomas. And his handlers and boosters created a Horatio Alger, pull-yourself-up-by-your-bootstraps story of a black man who emerged from a meager upbringing in Pinpoint, Georgia to become an embodiment of the American dream. We learned that he had Gullah roots. As someone with Gullah ancestry myself via Charleston, South Carolina, I must ask what happened to Thomas to make him run away from his people and forget from whence he came. Justice Thomas is part of the high court’s conservative majority (led by Justices Roberts and Scalia), and often is regarded as the most rightward judge among his peers.

His record on the bench tells the story:

An originalist, Justice Thomas believes in the original intent of the framers of the Constitution. That is bad news for black folks, and presumably for Thomas as well, given that under that judicial philosophy, he and all other blacks should be in chains on someone’s plantation.

Thomas staunchly defended gun rights for African-Americans by cynically making an argument that had hints of Malcolm X or the Black Panther Party. He suggested that black people needed guns to protect themselves from the mob violence of the Ku Klux Klan during Reconstruction. True, but that argument seems misplaced in the realities of present-day black America, when young black men in the cities are shooting each other to death. The staunch second amendment advocate had nothing to say about that.

anita hill

Anita Hill

In Hudson v. McMillian (1992), Thomas dissented from the court’s majority opinion which said prisoners were covered by the constitution’s protection against “cruel and unusual punishment.” Consistently, Thomas and Scalia have dissented when the court ruled in favor of prisoners who alleged cruelty, including the case of an inmate who was repeatedly punched in the mouth by a guard, a prisoner who was handcuffed to a “hitching post” and forced to stand shirtless for seven hours in the hot sun. Thomas even believed that an inmate who was slammed against a concrete floor, punched and kicked by a guard for filing a grievance did not have his constitutional rights violated.

According to Thomas, such harsh treatment did not qualify as cruel and unusual punishment. “Judges — not jailers — impose punishment,” he wrote. And while his outrage over the tasering and beating of his suicidal epileptic nephew in a Louisiana hospital was understandable if not laudable, never has he shown any sympathy for the one in nine prison inmates suffering from mental illness. It is understandable that Thomas’ former law clerk John Yoo was investigated for writing memos in the Justice Department justifying torture of terror suspects.

In another case dealing with the death penalty, Thomas concluded in a concurring opinion that a defendant’s childhood misfortunes or poverty should have no bearing in a case. And he sided with the minority when the court’s struck down random drug searches by police at highway checkpoints because they violate the right to privacy.

Thomas voted with the majority in Citizens United v. Federal Election Commission, which turns corporations into people with free speech rights that need protection, and paves the way for unlimited corporate funding of elections if not the outright purchase of democracy. That decision laid the groundwork for the corporate-sponsored Tea Party campaign of voter intimidation and voter suppression against blacks and Latinos in the current election season.

Clarence and Ginni Thomas

Clarence and Ginni Thomas

As Justice Stevens eloquently stated in his dissent, “The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”

Although a beneficiary of affirmative action, an arguably an unexceptional one at that, Clarence Thomas is dead set against such diversity programs. In Adarand Constructors, Inc. v. Peña (1995), he stated that, “so-called ‘benign’ discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race.”

Meanwhile, Thomas’ supporters insisted he was the most qualified person for the position, when he was arguably not even the best black conservative for the job.

Thomas was the only justice to vote against a key provision of the Voting Rights Act on the grounds that blacks no longer need protection against denial of ballot access through intimidation and violence.

Justice Thomas’ wife Ginni worked in the transition team for George W. Bush while her husband was casting his vote in the infamous Bush v. Gore case, when the Supreme Court essentially selected Bush as president. Perhaps he should have recused himself.

And it gets better, or should I say worse. Outside of the courtroom and judge’s chambers, Justice Thomas has dabbled in Tea Party politics, just as his wife fashions herself as a leader of that movement. Thomas and his cutting buddy Scalia have attended events sponsored by Koch Industries, masterminds and financiers of the racist Tea Party movement. This suggests deplorable politics at best, and a conflict of interests and a judicial ethics problem at worst. He says he doesn’t read newspapers. And Thomas officiated Rush Limbaugh’s third marriage ceremony in 1994 — at Thomas’ home no less. And he also attended the blowhard radio host’s fourth wedding earlier this year.

David A. LoveDuring his nomination hearings, then-Supreme Court candidate Thomas told the Senate Judiciary Committee that the proceedings were “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

To that I say, whatever. After he took his seat on America’s high court, Justice Thomas proceeded to lynch black America each day he went to work. And he has been doing it ever since.

David A. Love

This article first inThe Grio and  is republished with permission.

Published by the LA Progressive on October 24, 2010
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About David A. Love

BlackCommentator.com Executive Editor, David A. Love, JD, is a lawyer and journalist based in Philadelphia, and a contributor to the Progressive Media Project, McClatchy-Tribune News Service, In These Times and Philadelphia Independent Media Center. He contributed to the book, States of Confinement: Policing, Detention, and Prisons (St. Martin's Press, 2000). Love is a former Amnesty International UK spokesperson, organized the first national police brutality conference as a staff member with the Center for Constitutional Rights, and served as a law clerk to two Black federal judges. His blog is davidalove.com.