A Long Overdue Re-evaluation

"On the court, [Supreme Court Justice Clarence Thomas] has defined a deep, clearly personal jurisprudence anchored in an originalism that is receiving some scholarly respect. Combining this with his emotional, off-the-bench pronouncements on self-help and duty, Thomas has etched a new, more positive narrative of his life onto the public consciousness -- a parable for his own proposition that through perseverance, all adversity can be overcome. Respect can be earned. 'He has become a judge through and through,' says Drake University Law School Professor Thomas Baker."

Tony Mauro, American Lawyer, August 6, 2001

"Clarence Thomas no longer gets bad press. To the contrary, media treatments these days often are substantially positive."

Terry Eastland, Washington Times, October 26

My excuse, lame as it is, is that I am not a lawyer. So it wasn't until I read Terry Eastland's intriguing op-ed in the Washington Times that I discovered that Supreme Court Justice Clarence Thomas is no longer routinely, habitually vilified by academicians.

Not that this staunchly anti-Roe v. Wade justice will ever be embraced by either academia or the Media Establishment the way hyper pro-Roe Justice Thurgood Marshall was. (Marshall was Thomas's predecessor on the High Court.) And there still is a barely suppressed media reflex to clobber a man many reporters dismiss as too independent, too conservative, too everything-they-don't-like.

But what Eastland and Tony Mauro, author of a piece that appeared in American Lawyer that both complimented and belittled Thomas, agree on is that the 53-year-old Thomas is just coming into his own. Mauro quotes Professor David Garrow, no less, a man who had authored a book so relentlessly pro-abortion it could and should have been dedicated to Planned Parenthood.

Described as a "keen court watcher who was not optimistic about Thomas a decade ago," Garrow told Mauro, "The big news after 10 years is that Clarence Thomas has emerged as a reputable, independent justice. And he's not any follower of Scalia."

This is a remarkable change from the brutal treatment Thomas endured at his confirmation hearing and the ill-informed rantings of professional haters spewed out against him since. Although the anything-goes blitzkrieg against Thomas took place a decade ago, I remember the viciousness of those hearings like it was yesterday.

Our family was weaving our way through the mountains, on the way to a convention where I was to speak, as the hearings reached their climax. As we moved in and out of radio contact, we would catch snatches of the assault on Thomas's character so wretched it almost took your breath away.

Of course, we all knew going in that Thomas's opponents would reach into their bottomless bag of gutter-level tactics, such as the ones they had used to torpedo the nomination of Robert Bork to the Supreme Court. What I didn't know was that in its sophistication the assault would come to more than merit Thomas's memorable description of a "high-tech lynching."

Thomas, who is black, was smeared in an unmistakably racist manner by those who clothed their mudslinging assaults in dismissive questions about his intelligence, independence, and integrity. But President Bush (the elder) resolutely stood behind his nominee and Thomas fought back bravely against an army of opponents who made it clear early there were no depths to which they would not sink. He was confirmed by a couple of votes, amidst waves of ugliness and snide predictions that he would be a mediocrity on the bench.

But now, on the 10th anniversary of his elevation to the highest court, Thomas is carving out a reputation as a first-rate justice. In fact, a book-length examination of his jurisprudence was published a couple of years ago, First Principles: The Jurisprudence of Clarence Thomas.

In a C-SPAN interview, author Scott Gerber, professor at Roger Williams University School of Law, said of Thomas, "He is a bold and adventurous justice - - very principled, actually."

In addition to Gerber's book, there is another recent addition. Clarence Thomas, A Biography, written by Andrew Peyton Thomas. It was "published," Eastland writes, "to mark the 10th anniversary of the fateful confirmation hearings" and is just the latest evidence that "in recent years the public perception of Clarence Thomas has undergone a remarkable change. Few who closely follow the work of the Supreme Court now indulge the notion he isn't up to the job."

What a difference from August 1991 and his confirmation-by-character-assassination and the vituperative criticisms which those who were unable to defeat Thomas have hurled at him for years. If we are to believe Eastland and Mauro, the jury has now come back in, and its verdict completely exonerates Thomas.

For instance, he doesn't rely on his clerks any more than other justices and probably less than many. Nor is he a "clone" of fellow conservative Antonin Scalia.

While both ascribe to "originalism," an approach, writes Eastland in the Times, "that seeks the meaning of the Constitution by consulting its text and history," Justice Scalia "tends less to inquire into history than does Justice Thomas...."

The list of admirers includes his fellow justices. Mauro writes in American Lawyer, "Words of admiration for Thomas now flow more freely from the justices themselves. During a judicial conference in May, Justice Anthony Kennedy described Thomas as the justice the other eight turn to when they are unclear about some factual detail in the cases before them. 'Clarence has a photographic memory of the record,' Kennedy said glowingly."

Indeed, a decade later, legal scholars such as Thomas Baker are saying, "Thomas knows his own mind, and he follows his own lights, the lights of original meaning, to which he is the most faithful of the nine justices. He has come into his own as a justice over the last decade. Thomas has grown increasingly independent from Scalia...."

Worth recalling is that a major component of the win-at-all-costs coalition that attacked Thomas unmercifully in 1991 was the Abortion Establishment. It could not fathom (or if it did, did not care) that Thomas's opposition to Roe v. Wade was rooted in the unassailable conclusion that, jurisprudentially, Roe was created out of whole cloth.

Prospective justices who do not hew to the line established by the likes of Planned Parenthood and its puppets on the editorial pages of the New York Times and the Washington Post will always be the subject of withering attacks. It's refreshing and encouraging to see a good guy such as Justice Thomas not only make it through the gauntlet but perform in such an outstanding fashion that even those who disagree passionately with him concede he is making a real contribution.

dave andrusko can be reached at dha1245@juno.com