Frank’s Case Book

Clarence Thomas has proven to be such a tall lightening rod in storms born of Supreme Court controversies that reviews of Thomas’ autobiographical book My Grandfather’s Son: A Memoir are as much a measure of the political preferences of the reviewer as the are of the quality of the book. This reviewer confesses a sympathy for Judge Thomas’s jurisprudence and I was motivated by the sympathy to read the book.

No matter what one’s political philosophy, if one views the book as the odyssey of a single man the story is quite remarkable. Thomas was abandoned by his father at an early age, and his mother, unable to cope with raising Clarence and his brother Myers, deposited her children with Thomas’s maternal grandparents. The odds against this young African-American boy from Georgia were long and only reduced by the hard oversight of his grandfather Myers “Daddy” Anderson.

Anderson was by conventional standards poor, but was able set up his own oil delivery business and provide a home for his two grandsons. Despite the fact that Daddy oversaw a disciplined household his primary influence was by example not by application of discipline. Daddy pointedly said that he would never ask anything of Clarence that he would not ask of himself. Daddy influence was born of love, but he rarely displayed affection. Daddy knew how hard it would be for Thomas and his brother and did not want any familial softness to weaken the strength he was trying to instill. Although Thomas’ grandfather’s efforts succeeded, this lack of affection estranged Thomas from his grandfather. One of Thomas’s deepest regrets is that he was not ever able to come to a reconciliation with his grandfather during his grandfather life. It obvious to even the causal reader that the book represents a penance for this failure.

Thomas’s grandparents scrimped so he and his brother could have the academic and moral education afforded in a Catholic school. Indeed, for a time Thomas seriously considered the vocation of the priesthood. Thomas’s abandonment of this pursuit is one of the first disappointments that opened an unbridged void between Thomas and his grandfather. The elder Thomas expected people to be true to their comments and Thomas’s change of heart with regard to the priesthood represented failure.

Thomas graduated from the College of the Holy Cross with Honors in 1971 and from Yale Law School in 1974. Just these accomplishments places him at the extreme statistical end of what might expected from individuals born to his circumstances.

If one believes that Thomas is using this book to serve personal vanity or vindication, he did not do so in a particularly effective way. Thomas blames himself for the failure of his first marriage and pleads guilty to excessive alcohol consumption and financial irresponsibility. He was so much in debt that as young professional he frequently took advantage of the personal generosity of friends. There is much to admire in Thomas’s ascent from a child in the Jim Crow South to the US Supreme Court, but also much, as Thomas himself would agree, to dislike.

The New Yorker magazine asks “Why Clarance Thomas is So Angry?” Other reviews had commented on the Thomas anger. However, the question represents a misunderstanding the of the book. There is a difference between soul-destroying bitterness and righteous indignation. Was Frederick Douglas who railed against the injustice of slavery bitter or justifiably angry and the treatment of his race? In his biography, Thomas does not appear embittered, despite his vicious treatment by those opposed to him but rather resolute to overcome his critics by studious adherence to his judicial philosophy. It is a steadfastness taught to him by his grandfather.

To the extent there is anger, or least frustration, in Thomas it appears to be born of his treatment after Yale Law School. Because blacks were admitted to Yale via an affirmative action program, the Yale Law degree was not worth as much to a black person as to a white person. Thomas did well at Yale on his own merits, but affirmative action tainted his degree. Because of the program, law firms had little assurance about the quality of the credential as it applied to African-American graduates. Thomas was rightly resented the injustice of this situation.

Ultimately, Thomas was hired by a Missouri Attorney General, Republican John Danforth who would prove to be an important mentor. After service for Danforth, Thomas decided to help his family financially by working as a staff attorney for Monsanto Corporation. The work was remunerative, but not a sufficient intellectual challenge. Thomas took a pay cut and became a legislative assistant for Danforth , after Danforth was elected to the Senate. Thomas registered as a Republican and voted for Ronald Reagan 1980. Ultimately, Thomas became Chairman of the Equal Employment Opportunity Commission. He used his eight-year tenure to put the poorly-run organization on an even keel. It is here that he honed his civil rights judicial philosophy, came to the attention of senior Republicans in the Reagan and Bush Administrations, and hired Anita Thomas on the basis of a recommendation of a friend.

Impressed, President George H. W. Bush appointed Thomas to the United States Court of Appeals for the District of Columbia Circuit in 1990. When Justice Thurgood Marshall retired in 1991, President nominated Thomas to fill Marshall’s place on the Court.

The saga of Thomas’s contentious confirmation is now almost legend. Despite a full blown “Borking” of Thomas, it appeared that Thomas’s confirmation would slide through. Then Anita Hill happened. Anita Hill claimed that Thomas had sexually harassed her. Books have been written about the charges and Thomas’s defense. In retrospect, the arguments seem quaint after the charges against President Bill Clinton which we know now to be true. The fact that feminists groups did not rally against Clinton the same way they did against Thoma provides evidence that Thomas’s real transgression was not sexual harassment but his possibility that the would to vote to uphold the Roe v. Wade abortion decision.

Thomas did not take the opportunity of his biography to focus on Hill’s charges. Actually, she occupies a fairly minor role in his book as she has turned out to be in subsequent years. Thomas reserves his indignation for the others that used Hill. The Liberal establishment opposed Thomas because of his Originalist jurisprudence and because as a black American he defied the conventional wisdom about how a black man ought to think. To keep Thomas off the Supreme Court it was not enough to say that we disagree with him, because at least at that time Presidents were usually granted their judicial choices. They had to dig into is personal life and find enough dirt to destroy him personally. There is no tactic not justified to protect the abortion decision. These people continue to poison the political atmosphere. It was Thomas’s spirited defense, when he compared his treatment to a “high-tech lynching” that played on the old canard of uncontrolled black make sexuality, that turned the tide and insured his confirmation, albeit by a slender majority.

The ultimate irony is that although Thomas had a Conservative view of constitutional interpretation there was no guarantee that he would become the stalwart pillar of Originalist jurisprudence that he did. However, the politicization of his confirmation made clear to Thomas that the Court had strayed too far into the political decisions reserved for Congress and the President. Judicial appointments only become continuously controversial when the Courts have usurped enough power from the other two branches the the confirmation process becomes the only place for the political process to play out. If the Courts had allowed abortion liberalization to happen legislatively, which was occurring at the time of the Roe v. Wade decision, the confirmation process now would not be so contentious and ugly.

“Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?

Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things;it has predisposed men to endure them and often to look on them as benefits.” — Alexis De Tocqueville, Democracy in America, Chapter 6, What Sort of Despotism Democracies Have to Fear.

It would be convenient if tyrants would announce their presence with snarly demeanors, black hats, or curly dark mustaches. Unfortunately, tyranny insinuates itself in democracies sweetly wrapped in kindness and genuine good intentions. In order to institute plans for the good of all, certain actions must be circumscribed and other duties compelled for the good of all. De Tocqueville recognized this inherent weakness in democracies. It is just as easy to find oneself ruled by a single tyrant or the tyranny of the majority. Our Founding Fathers hoped that in large democracies it might be less likely that a permanent majority could maintain itself and that competing“factions” would check each other.

One of the most recent examples of this danger of soft despotism came when Democratic presidential candidate John Edwards’s explained his proposed national medical plan. We can thank Edwards for carrying through the logic of his advocacy for socialized medicine. In an effort to keep the cost of his plan lower, Edwards is going to demand preventive care. His program “requires hat everybody be covered. It requires that everybody get preventive care .. .You have to go in and be checked and make sure that you are OK.” Besides requiring that everyone get regular check ups, all woman would require regular mammograms.”

Now such actions may appropriate for reasonable people to decide to do, requiring them under the threat of penalty is intrusive. If one carries out Edwards’s logic to its ultimate conclusion, government could leverage medical care to controls over a larger variety of heretofore personal activities. Controlling diet, exercise routines, risky behavior such as certain sports, some sort of sexual behavior, or decisions when to have children, could all fall into activities liable to regulation by a government desperately trying to hold down costs. Government programs are notoriously inefficient and the more government controls medical care the more greater the need to institute cost controls.

The internal logic of personal liberty is that individuals are free to do whatever they want as long as their actions are private, not affecting others. As soon as we socialize the costs of medicine, there are no private actions. Virtually any activity can affect health costs and are thus legitimate avenues for regulations. As the scope of private action shrinks so does freedom.

What is worse, as De Tocqueville recognized, as individuals cede personal decisions to other authorities, they fall out of the habits of individual autonomy. They begin to look for guidance and direction, rather than chafe against supervision. They transform from robust individuals to a herd of sheep deferential to their shepherd government.