On May 17, 1954 – which happened to be my birthday – the United States Supreme Court ruled 9-0 in the case of Brown vs. Board of Education. Public schools could no longer be segregated, effectively tossing out the infamous Plessy vs. Ferguson “separate but equal” ruling of 1896.
Leading the legal charge before the Supreme Court, representing Brown et al., was chief counsel for the NAACP, Thurgood Marshall, the grandson of a slave and imbued by his father to study the Constitution, where rests all hope for freedom. Brown v. Board of Education was a game changing decision, emboldening leaders like Martin Luther King, and was the first trumpet sound of the civil rights movement.
Thurgood Marshall, even before this case, had long been a legal champion of the underdog, and in his career argued more cases before the Supreme Court than any other lawyer in American history. Marshall was born in Maryland, but was denied entry to the University of Maryland Law School – because of their segregation policy. Stung by this injustice, it drove him to that area of the law, determined to defeat the legacy of Plessy vs. Ferguson. Indeed, as a 27 year old litigator, just three years after graduating from Howard University law school, Marshall successfully tried a case – Murray vs. Pearson – which ended segregation at Maryland Law School.
He was appointed judge to the second U.S. court of appeals by JFK, where he tirelessly continued hearing civil rights cases. In 1965, served briefly but successfully as Solicitor General of the United States before being appointed by LBJ in 1967 as the first black man to serve on the United States Supreme Court. During his distinguished 24 year tenure in the Supreme Court, this great legal champion was considered the “voice for the voiceless.”
This was a great jurist, and humanitarian, the sort that we want to see on our U. S. Supreme Court. Times have changed, and, one can almost pin point – pun intended – when the change started. Some might consider that time to be the when the Court was stacked with the highly partisan conservative additions of Antonin Scalia, William Rehnquist, Anthony Kennedy and Sandra Day O’Connor, all by Ronald Reagan.
They could use a fifth. Well, elections have consequences.
In late 1990, the great Thurgood Marshall, last of the great liberals on the court, was in ill health, and reluctantly had to retire from the bench. Reluctantly, because president who would name his replacement was one George Herbert Walker Bush. Marshall was none too pleased about the situation. Time would quickly tell how justified was his displeasure.
There was a convergence of events that led to Bush’s disastrous selection. First, there was the rejection of Robert Bork, a Reagan appointee, four years before. Progressive groups protested his nomination as being “too extreme”, and he was defeated by the Senate. Resentment flared. The verb “to Bork” was born. When William “Roe vs. Wade” Brennan retired, Bush selected David Souter – who turned out to be a liberal in conservative clothing. Chief of Staff John Sununu, who had actually sold Bush on Souter, vowed that the next judge appointed would be a “true conservative”, and they would fight tooth and nail for his (or her) confirmation. Just a few months later, they had their opportunity to get that fifth vote.
And of course, in what can only be called irony, who should be the next justice to be replaced but the highly regarded champion of progressive ideals, and hero of Brown vs. Education, Thurgood Marshall. And who should be Bush’s cynical choice to replace this progressive black man? Libertarian black man Clarence Thomas, an unremarkable judge on the court of appeals.
But the Bush team needed a reliably conservative black man to nominate. There were not a lot of choices. Yet Bush called Thomas “the best available candidate”, presumably regardless of race. So things started off dicey for this candidate.
What were Thomas’ bona fides? He had graduated Yale Law School, and worked for a time as Senator John Danforth’s legal team in Missouri, and served briefly as head of the Equal Employment Opportunities Commission, ironic since Thomas was skeptical of the whole affirmative action thing.
Thomas, who early on had been influenced by Ayn Rand (uh oh) and considered himself a libertarian (uh oh), had only a year experience as a federal judge (also thanks to a Bush appointment). He had never argued a case in front of the Supreme Court. The ABA gave him a “satisfactory” rating and a 13-2 vote. No Supreme Court nominee in decades had received less than a unanimous vote. Surely not “the best available candidate”.
And the heat was turned up when progressive groups promised to “Bork” Clarence Thomas. But the campaign was on from the Bush side. Bush and co. dared progressives in the Senate to deny a black man a place on the Supreme Court. Before the Judiciary Committee (headed by Joe Biden), true to form, Thomas was mum and cute about his feelings on such things as affirmative action and abortion. He downplayed his beliefs in “natural law” and the writings of Ayn Rand.
And then along came Anita Hill, a black woman attorney with perhaps a superior legal record to Thomas’, busting him for sexual harassment. Of course it was mortifying and seriously called into question Thomas’ judicial qualifications and temperament – if his weak legal career and libertarian views had not already. The Republicans did then what they have always done – they closed ranks. Rather than consider Hill’s veracity, they simply saw her as a tool of the left, and sought to smear her. Part of their campaign was using a young unwitting conservative David Brock to write a quick book about her called “The Real Anita Hill” (“a little bit nutty and a little bit slutty”). Future Democrat Arlen Specter led the charge on the Judiciary Committee, suggesting perjury.
And then Frank Luntz or someone of that caliber crafted an indignant response for Mr. Thomas: “this is a high tech lynching.” Race card, played hard. But strictly for show. Anita Hill was black (and, at this writing, still is). At worst it was “he said/ she said”. Where was the racism? Where was the “lynching”? The black man who has repeatedly questioned the value of affirmative action, and indeed oddly “blamed” affirmative action for letting him into Yale, (thanks in no small part perhaps to Thurgood Marshall’s past anti-segregation lawsuits) was now fully exploiting his blackness, O.J. – style. The ambitious Thomas was willingly playing Bush’s cynical game, hoping guilt ridden white Senators would be shamed into dismissing Hill’s accusations and supporting him.
The nomination went to the floor without a recommendation from the judiciary committee. But “the ends” is what has always counted for Republicans. And indeed, at the end of the day, the Republicans got their 50 votes plus one (in fact they got 52 votes in the Senate), and “Justice” Clarence Thomas squeaked into the door of the Supreme Court, never looking back. They had their fifth vote.
The contrast between the two justices could not be more palpable, in and out of the court.
Whereas Marshall was Voice of the Voiceless, Thomas has been anything but. In fact, he famously seldom speaks during oral arguments. Irony Man.
He has reliably been a fervent supporter of the powerful, voting to select George Bush the son, in the notorious Bush v. Gore 5-4 vote of 2000, and voting as part of the 5-4 majority in favor of Citizens United in 2009. Both can arguably called the worst decisions made by any Supreme Court, and both can arguably be said to have seriously changed the course of American democracy for the worse – in ways precisely the opposite to what Thurgood Marshall fought for. One can only imagine the votes had they been in the hands of the great Marshall, and how many of Marshall’s great strides Thomas has sought to undo (along with his “5-4” pals).
But if Anita Hill’s warnings were not heeded in 1991, in 2011 they seem to have gained some heft. Is Clarence Thomas not just partisan but also dirty – and not in the pubic hair on the coke can sense.
Ethical concerns are now circling heavily around this man who so reliably has served the conservative cause on the highest court in the land. Have his vaunted pro-corporate votes on the court actually been well secured, (we won’t say “bought” at this juncture)? In one instance, he allegedly attended an all expenses paid retreat put on by the libertarian sociopath Koch Brothers, who well benefited from Citizens United, in Palm Springs in 2008. This of course pre-dates the “Citizens United” case. Should not Thomas have recused himself, along with fellow partier Antonin Scalia?
Further underscoring his lack of similarity to his auspicious predecessor is the somewhat distasteful spectacle of his wife, Ginnie, wearing a foam “lady liberty” head piece seated at the head of her Tea Party organization. Indeed she seems to be the mad hatter of the tea partiers, stridently opposing the Affordable Healthcare Act, which will surely find its way into a Supreme Court case. It is practically the dictionary definition of “conflict of interest”, yet Thomas remains defiant, and vows not to recuse himself. He also failed to report hundreds of thousands of dollars of Ginny’s earnings in required disclosure forms. He simply wrote “none” in answer to the question. That would be lying and deception, again, per any dictionary.
And then there’s the curious emergence of Thomas’ wealthy right wing pal, Harlan Crow, who bankrolled Ginny’s tea party project to the tune of $500,000. Ol’ buddy Harlan also treated the Thomases to luxurious vacations, and he contributed $150,000 to the construction of a museum in “Justice” Thomas’ hometown of Pin Point.
But there’s one more thing Harlan did for Thomas, with not a little irony. He made a gift of a bible that once belonged to the great civil rights advocate, Frederick Douglass. Douglass once said “Power concedes nothing without demand. It never has and it never will.” Thomas by contrast once said “Good manners open doors that a good education will not.” Not to mention a shitload of Harlan Crow money.
It is a good question where Attorney General Eric Holder will do anything about these accusations. Former Rep. Anthony Weiner was leading a campaign in the House to examine Thomas’ possible ethical lapses, but with not a little help from himself, the powers that be silenced him. And so it goes, a long way from the coke can to the Koch Brothers, a career – not yet over – of treading on as many rights and freedoms as his predecessor sought to preserve. “Justice” Thomas has been ensconced, at Scalia’s right hand, for lo these 20 years, sitting silently in Thurgood Marshall’s seat, his tiny feet lost in Marshall’s enormous shoes.
Submitted for your approval as we celebrate the birthday of this nation, and where it’s headed, and the quality of those who are taking us there. We are a land of Lincoln, and a land of Bush. We are a land of Marshall, and a land of Thomas. One will prevail, but not both.
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