In his keynote address to the 1995 National Conference on Judicial Biography, Richard A. Posner advised that encyclopedic treatments of a justice's life and career are unlikely to bear much relation to what should be the primary function of judicial biography: "to illuminate the judicial process." Rather, Posner argued, a "judicial study" that focuses on a particular aspect of a particular justice's time on the bench "holds greater promise" for informing readers about how the judicial process really works. I wrote First Principles: The Jurisprudence of Clarence Thomas with Judge Posner's recommendation in mind.
Most judges and court-watchers prefer to believe that both judging and writing about judging are "neutral" activities, uninfluenced by the political preferences of a given judge or commentator. My examination in First Principles of Justice Thomas's tenure on the Supreme Court revealed, perhaps better than an examination of any other justice could, that these are inherently political activities.
By "political," I don't necessarily mean "partisan." I found that Justice Thomas's political philosophy--his conservative, and often libertarian, ideology--influences his judicial opinions and votes. In other words, his judicial behavior is consistent with what political scientists term "the attitudinal model."
Unfortunately, however, almost all of the reaction to Justice Thomas's opinions and votes is partisan. As I detailed in First Principles, commentators are either "for" Justice Thomas or "against" him, in the crassest possible sense. The reaction to Justice Thomas's memoir, My Grandfather's Son, continues this disturbing trend. There are exceptions--David J. Garrow's review for Legal Times stands out among them--but they are few and far between.
Thumbs Down from the Left on Justice Thomas's Memoir: The Fletcher/Merida/Barnes Review and the Merida Solo Review
Of course, most of the media is liberal. Consequently, the vast majority of the reviews of Justice Thomas's memoir have been negative. Space constraints permit me to discuss only a few.
Washington Post staff writers Michael A. Fletcher and Kevin Merida, co-authors of a recent unauthorized biography about Justice Thomas, didn't even wait until Justice Thomas's memoir was released before trashing it. (They claim to have "purchased" a copy of the book from "an area bookstore" three days prior to its October 1 release.) The opening sentence of their September 29th Post article, written with Robert Barnes, reads: "Justice Thomas settles scores in an angry and vivid forthcoming memoir, scathingly condemning the media, the Democratic senators who opposed his nomination to the Supreme Court, and the 'mob' of liberal elites and activist groups that he says desecrated him."
It's downhill from there. Most troubling is their comment that Justice Thomas "indicates he wrote [the book] himself." Who else do Fletcher, Merida, and Barnes think would have written it? To the best of my knowledge, reviewers don't make observations like that about books written by other Supreme Court justices.
Apparently believing that he had still more insight to offer about Justice Thomas's memoir, Merida also penned a full-blown solo review, less than two weeks after his column with Fletcher and Barnes had appeared. He opens the review by remarking on Justice Thomas's "roiling state of mind" and closes it by insisting that the memoir "has a partisan edge that most contemporary books by Supreme Court justices do not." What Merida maintains, in between, is that Justice Thomas is wrong to analogize the treatment he received during his confirmation hearings to "Richard Wright's tragic Bigger Thomas in Native Son and Harper Lee's doomed Tom Robinson in To Kill a Mockingbird."
Merida's discussion of Justice Thomas's literary references is interesting, but one-sided. It's simply impossible to believe, as Merida seems to suggest, that race has played no part in the rancor heaped upon the nation's only African-American justice. If studying Justice Thomas's career has convinced me of anything, it is that an African-American judicial conservative such as Justice Thomas is subjected to a level of vitriol by the liberal elite that other conservative judges--the celebrated Justice Scalia, for instance--do not face.
The Toobin Review: Claiming Justice Thomas's Success is Virtually All the Result of Affirmative Action
Meanwhile, Jeffrey Toobin, author of a recent book about the Supreme Court, describes in a review published in The New Yorker how "Thomas's career looks like a model of how affirmative action is supposed to work, but that isn't how Thomas sees it." The review, entitled "Unforgiven: Why is Clarence Thomas so angry?," is accompanied by one of The New Yorker's famous illustrations. This one: a caricature of a "seething" Thomas.
Toobin gives Thomas little credit for earning on the merits his appointments as chairman of the E.E.O.C., judge on the U.S. Court of Appeals for the D.C. Circuit, and justice of the Supreme Court. Instead, Toobin asserts that Thomas was "given" each job "because he was black." For example, Toobin writes the following in discussing Thomas's appointment to the D.C. Circuit: "Just forty-one years old, Thomas had never tried a case, or argued an appeal, in any federal court, much less in the high-powered D.C. Circuit; the last time Thomas had appeared in any courtroom was when he was a junior attorney in Missouri; he had never produced any scholarly work; his tenure at the EEOC, although respectable, did not mark him as a notable innovator in the federal bureaucracy. He was, in short, a black conservative in an Administration with very few of them. That's why he got the job."
What Toobin fails to mention is that, by 1989, Thomas already had established himself as the leading government authority in the United States on the document that articulates the political philosophy of our nation, the Declaration of Independence. Although Toobin might not characterize Thomas's speeches and articles on the relationship between the Declaration and the Constitution as "scholarly work"--assuming Toobin bothered to read them at all--the conservative legal movement certainly did. And while Toobin might try to downplay Thomas's eight-plus years of service at the EEOC --hardly a "modest federal agency," as Toobin calls it--President George H.W. Bush obviously disagreed. So, too, did the United States Senate, which confirmed, by voice vote, the President's nomination of Thomas to the D.C. Circuit Court of Appeals.
Personally, as someone who has spent a large portion of his own professional life writing about the role of the Declaration of Independence in constitutional interpretation, I consider Clarence Thomas to have been the most qualified person President Bush could have appointed to the nation's highest court. Of course, this doesn't mean that race wasn't a factor in Thomas's appointment to the D.C. Circuit, let alone to the Supreme Court. But what it does mean is that Thomas had achieved far more during his professional career by both 1989, when he was nominated to the D.C. Circuit, and 1991, the year of his Supreme Court appointment, than liberal critics such as Toobin are willing to concede. Indeed, upon a fairer examination, Thomas's credentials compare quite well with those of other jurists who likewise have served on the D.C. Circuit and/or the Supreme Court during the past twenty years.
Additional Negative Reviews, and Anita Hill's Response to Justice Thomas's Memoir
The list of negative reviews from the Left goes on--and some on the list make the reviews by Fletcher, Merida, and Barnes; Merida alone; and Toobin look judicious by comparison. For example, Jon Weiner writes in The Nation that Justice Thomas's memoir is a "howl of rage and pain"; Eugene Robinson opines in The Washington Post that "the presence of Justice Clarence Thomas on the U.S. Supreme Court" is a powerful argument against affirmative action; and The New York Times, which has a history of editorializing against Justice Thomas, maintains that the "rage he harbors raises questions about whether he can sit as an impartial judge in many of the cases the Supreme Court hears."
Anita Hill--mentioned in every review--is also critical of Justice Thomas's memoir, or at least of that portion devoted to his confirmation dispute with her. As I stated in the Conclusion to First Principles, only the two of them really know what happened between them. It occurred more than two decades ago. It's time to move on.
Thumbs Up from the Right
A 1999 cover story in The Weekly Standard proclaimed that Justice Thomas was "America's Leading Conservative." The reviews and Op Eds penned by conservatives of Justice Thomas's memoir indicate that the Right's affection and respect for the justice remains as powerful as ever.
Rich Lowry, editor of National Review, calls Justice Thomas's memoir "a great American story, written by an extraordinary man." He also adds that Thomas "persuasively" demonstrates that Hill's "accusations were a brutal instance of the politics of personal destruction."
Michael Steele, the former Republican Lieutenant Governor of Maryland, insists in The Wall Street Journal that "despite the sniping from political and ideological opponents," Justice Thomas's memoir "is not a score-settling polemic." Rather, "it is an intensely personal account of one man's remarkable journey."
Suzanne Fields seconds Steele's sentiments. She opines in The Washington Times that My Grandfather's Son "is an astonishing document, not so much about politics as a personal story of maturing with an eye for reflection, a realistic look at the cast of characters and the events that shaped thinking and behavior."
Law professor John Yoo, who clerked for Justice Thomas, defends his former boss in a lengthy Op Ed in The Wall Street Journal. He thunders: "Liberal attacks on Justice Thomas echo segregation-era hate speech that would be called racist if leveled at any other black." Yoo, by contrast, applauds Thomas for being "the justice most committed to the principle that the Constitution today means what the Framers thought it meant."
Last but far from least, Shelby Steele, one of the nation's most influential conservative African-American intellectuals, trumpets Justice Thomas in National Review as "the freest black man in America." What Steele means by that is that Justice Thomas is "a man who simply thinks for himself." He credits My Grandfather's Son with providing "the rich details" for how Justice Thomas became the man that he is and an "archetype that will inspire others."
My Assessment of My Grandfather's Son
I have devoted a surprising amount of time since the publication of my book about Justice Thomas's jurisprudence to trying to persuade people that it's possible to be neither "for" Justice Thomas nor "against" him. My objective is simply to read what he writes and do my best to assess it objectively. Sometimes this means I agree with him, and sometimes it means I disagree. Justice Thomas once paid me the highest compliment a scholar can receive when he stated publicly that he understands what I'm attempting to do.
This said, I must say that, to me, much of the reaction from the Left to Justice Thomas's memoir crosses the line of common decency. It's certainly permissible to disagree with Justice Thomas's judicial opinions. As I mentioned above, I sometimes do. However, it's not appropriate to express that disagreement through ad hominem attacks.
My Grandfather's Son is a moving portrait of a man who has overcome more obstacles than all of his critics combined. Of course, I reserve the right to continue to disagree with some of the opinions Justice Thomas issues on the Supreme Court. What I refuse to do, however, is to try to trivialize the remarkable life he has led.
Justice Thomas is not perfect, and he acknowledges as much in his book. His defenders need to stop suggesting he is beyond fault. His critics need to stop pretending they aren't.