Clarence Thomas: A Silent Justice Speaks Out
Part VI: Becoming a Judge — and perhaps a Justice
By JAN CRAWFORD GREENBURG
Sept. 30, 2007—
After George H.W. Bush was elected, Thomas began thinking of what post he would like to assume in the new administration and told a member of the transition team, Michael Uhlmann, he was interested in serving as deputy director of the Office of Management and Budget. He also argued it was important for Bush to "place blacks in nontraditional positions."
Uhlmann instead asked Thomas if he were interesting in becoming a federal judge, but Thomas was unsure.
"That's a job for old people," Thomas wrote that he replied. "I can't see myself spending the rest of my life as a judge."
A friend, federal appeals court Judge Laurence Silberman told him "it's not like slavery, Clarence. You can always leave if you don't like it." And the next summer, in June 1989, President Bush announced he would nominate Thomas to the U.S. Court of Appeals for the D.C. Circuit.
In his meetings with white Democratic staffers in the Senate, Thomas wrote, he was met with ill-concealed hostility." He says he was "struck by how easy it had become for sanctimonious whites to accuse a black man of not caring about civil rights." But his confirmation hearing to the federal appeals court would prove uneventful, and he got the support of a number of influential African Americans, including William Coleman, co-author of the NAACP's Brown v. Board of Education brief.
Thomas wrote in some detail about how much he enjoyed his time on the D.C. Circuit and of the warm relationships he developed with his colleagues, including then-federal appeals court Judge Ruth Bader Ginsburg. He also wrote about a piece of advice Silberman gave him when he first joined that court.
Silberman advised Thomas to ask himself: "What is my role in this case — as a judge?" It eventually became central to his approach to judging.
Thomas had been on the appeals court mere months when Justice William Brennan stepped down, and rumors circulated that Thomas was on the short list to replace him. Bush actually wanted to nominate Thomas for that seat. He was worried about the "optics" of nominating him to replace Justice Thurgood Marshall, if he were to retire, because he didn't want Thomas to be perceived as a quota pick.
But Bush's advisers, including White House Counsel Boyden Gray, believed it was too soon for Thomas, so Bush tapped another new appeals court appointee, David Souter of New Hampshire. Souter had spent seven years on the New Hampshire Supreme Court and had worked in state government before that. But he had yet to write a federal court opinion or grapple with hard federal constitutional law questions — as the Bush Administration would realize soon enough when the inexperienced Souter, once on the Court, proved to be less conservative than they had ever expected.
The next year, Marshall — a civil rights icon — announced his retirement. Thomas heard he was the leading candidate and wrote that he "felt sick" at the prospect of being a Supreme Court nominee. He worried about spending the rest of his life as a judge, and he worried about the battle it would take to get him confirmed because of his outspoken views.
But on the last day of June, President Bush phoned Thomas in his chambers in Washington. He asked him to come to Kennebunkport to discuss it with him, so Thomas flew up alone, not sure if he was being interviewed or selected. Virginia suggested he write a statement just in case. At her suggestion, he inserted in the statement that it was "only in America" that someone with his humble background — a poor black child from the segregated South — could grow up to become a Supreme Court nominee.
As Bush introduced Thomas to the nation, Thomas heard the clicking of the cameras, which he wrote "sounded like summer rain falling on the tin roof of our hand-built house in Liberty County, the individual drops blurring together in a steady pitter-patter." Standing beside the President, Thomas thought of his grandparents, and he suggests he had a sense of foreboding. He wrote that he recalled the ants he had watched as a child on the farm, building hills one grain of sand at a time, "only to have them senselessly destroyed in an instant by a passing foot."
"I'd pieced my life together the same way, slowly and agonizingly," he wrote. "Would it, too, be kicked callously into the dust?"
Facing the cameras, Thomas unfolded the piece of paper on which he'd written his statement, and he thanked "all those who have helped me along the way… especially my grandparents, my mother, and the nuns." His voice broke, and he was overcome by emotion. He struggled to compose himself. "I look forward to the confirmation process and an opportunity to be of service once again to my country and to be an example to those who are where I was and to show them that, indeed, there is hope."
His nomination should have been, Thomas says today, "a positive, important moment — a celebration of my grandparents' life." Instead it would become the most bitterly fought Supreme Court battle in modern history, one that would scar Thomas deeply, to the point that 16 years later he sometimes seems too wounded to discuss it.
He says he blames himself for feeling a moment's pride, but it would not last long. Immediately after Thomas finished his statement, Bush took questions from the journalists gathered before him. The second one he received was about whether Thomas was, in fact, the most qualified nominee. Bush, instead of saying he thought it was important to have someone of Thomas's background and race on the Court — much as his son would later seek to do in seeking a woman to replace Sandra Day O'Connor — responded forcefully that race had not played a role.
He said Thomas was the "best qualified (nominee) at this time," but he did not explain what he meant by that, leaving the impression that Thomas was the most qualified nominee, regardless of his race or the political climate or whether he would stick to his views once on the Court — things that presidents typically consider when making a selection.
It was an obvious absurdity, and it created a dynamic which put Thomas in the position of forever defending his qualifications.
In the book, Thomas comes across as somewhat defensive on whether race played any role in his selection. He explains that Gray later told him Bush — in calling him the best qualified "at this time" — meant he was "looking for someone who was not only competent at doing the job, but who had also been tested in political battle and thus could be counted on not to cave in under the pressure of a confirmation battle, or to change his views after being appointed to the Court."
"I definitely qualified on that score," Thomas wrote, adding that his FBI file also was "very clean."
Had the White House seriously vetted Thomas, or closely analyzed his views, it would have probably been more reluctant to nominate him, because he'd given countless speeches while at EEOC expressing a range of controversial opinions, not only about the law and the Constitution, but also on his critics and his admiration of Louis Farrakhan and the Black Muslim theory of self reliance — all of which would be fodder in his confirmation hearing.
In an interview, when asked whether it was legitimate for Bush to take his background and experiences into consideration, Thomas deflects the question.
"I have no idea," he says. "I'm glad we have the system we have, where you have presidents who nominate all sorts of different people.
And he makes a broader point that the questions people asked and the assumptions people made would never have been asked or assumed about a white nominee.
"Someone else could have been the child of some phenomenally wealthy person and gone to the exact same school, exact same courses, etc., and they would never be asked that, as long as they were white. Or if I had the right views, it would not be asked," he says. "That's part of the game. I understand that."
Thomas spends about a third of the book discussing his nomination and confirmation, and like the rest of the book, for him the issue of race hangs over all of it. He wrote that he went into the hearings — before Anita Hill's allegations became known — expecting opponents to play the race card: to play on racial prejudices, especially in the South, that he was unqualified and had a white wife. He suggests it was a strategy of giving southern senators cover to vote against him without antagonizing conservatives.
"From the very beginning, the quotes were, 'We're going to kill this guy. Who does he think he is?' And then they added the word 'politically' they were going to kill me," Thomas says. "It was mean from the very beginning. So there was no moment when you felt excited about it."
He is harshly critical of Senate Democrats and describes the NAACP as assuring the outside groups "it was now all right for them to smear a black man."
"What saddened me was the fact that an organization whose independence had once been a byword in the Deep South had been reduced to doing the bidding of the AFL-CIO," Thomas wrote of the NAACP.
He spent the summer preparing for his hearings, studying briefing books and meeting with senators. He wrote that his secretary at EEOC, Diane Holt, once asked whether Hill "would say anything negative about me." She had left EEOC after Thomas promoted another woman to be his chief of staff, and Thomas wrote in the book that she was incensed and accused him of favoring lighter-skinned women. He also describes her as combative and unpleasant to her colleagues.
But he says he also had wondered whether she, as a liberal, would be willing to testify on his behalf.
"It never occurred to me that Anita might become… my most traitorous adversary," he wrote.
His confirmation hearing began September 10, 1991, and Thomas immediately was confronted with aggressive questions by Sen. Joe Biden, the committee chairman. In their private meetings before the hearings, Thomas wrote that Biden led him to believe he would begin with "softball questions," but he instead "threw a beanball straight at my head."
He wrote that the words of the song "Smiling Faces" by the Undisputed Truth came into his head: "Smiling faces tell lies/And I got proof."
"Now, I, too, had proof: Senator Biden's smooth, insincere promises that he would treat me fairly were nothing but talk," Thomas wrote.
To continue on to Part VII: 'Traitorous' Adversaries: Anita Hill and the Senate Democrats, please click here.