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What Will The Clarence Thomas Appointment Mean?

By Jay Rogers
Published September 1, 1991

U.S. Circuit Judge Clarence Thomas has been nominated to replace retiring Supreme Court Justice Thurgood Marshall. Thomas was born in segregated poverty in Georgia in 1948. He was raised by his maternal grandparents. Clarence’s story is one of hard work, honesty, dedication, and the will to achieve anything no matter what the circumstances.

Jet magazine epitomized Thomas’ story: “The hope that he now offers all those who struggle to make something of themselves is his impressive story of the hope that enabled him to rise from poverty to the Supreme Court.”

Judge Thomas described his background in 1987: “God was central. School, discipline, hard work, and knowing right from wrong were of the highest priority.” Thomas now attends a charismatic Episcopal church. From his humble beginnings, his story has been one of a triumph of faith over adversity.

“The reason I became a lawyer,” said Thomas, “was to make sure that minorities, individuals who did not have access to this society, gained access. Now I may differ as to how best to do that, but the objective has always been to include those who have been excluded.”

Thomas’ nomination comes at a time when the Supreme Court appointments have been highly politicized. Our nation has been polarized into two groups:

1. Those who believe that the United States Constitution is law; and should be interpreted according to its original intent.

2. Those who believe that the Constitution is subject to any interpretation and would use it to further their political objectives.

Thomas clearly falls into the first category; his past references to the “natural law” and his commitment to judicial restraint attests to this fact. There is a campaign brewing which seeks to discredit every Court nominee who adheres to the idea of “Original Intent.” But there is something larger at stake here: Who controls the courts? Who controls the United States Constitution? The two political parties of the U.S. are becoming increasingly polarized on this issue.

We are now facing the increasing politicization of our culture which includes our educational institutions and our courts. There are only two sides to this issue. Either the Constitution is fixed and applicable only when the principles laid down by those who ratified the Constitution are adhered to; or, it is a malleable document which can be interpreted by justices to fit the desires of special interest groups.

There is a struggle between these two groups on Constitutional law. It is being waged in the law schools where our future judges are being trained. Many law schools are becoming politicized. Today in the major law schools, the political view of judging – the one which curries the favor of party politics – is clearly ahead. The notion that the Constitution is law has been discredited.

But the political attitudes of university faculty at these law schools and those of the American public have never been further apart. This led William Buckley to write: “I would rather be governed by the first 200 names in the Boston phone book, than by the Harvard faculty.” The professors of these law schools are urging courts on toward greater liberalization in interpreting the Constitution without regard to its historical meaning.

As a consequence, the Supreme Court has approved reverse racial discrimination under a statute which clearly forbids it; they have managed to find a Constitutional “right to abortion” without clearly explaining how they found this idea; they have come within one vote of finding a Constitutional right of homosexual conduct. For a time the Supreme Court even abolished the death penalty, although the Constitution explicitly assumes that the death penalty is available to a legislature should they care to use it.

The point to be made here is that the Constitution does not require that anyone be politically opposed to any of these rulings, but that these are political questions – and should be for the people and their political representatives to ponder and decide – and not for judges.

The underlying issue here has to do with individual liberty. When the courts depart from Constitutional statutes to create new rights, they subtract from individual liberty and never add to it. Among our Constitutional freedoms is the right to govern ourselves democratically (ie; only through individual vote and elected representatives) – unless the Constitution contradicts public opinion.

If a situation arises in which the Constitution is out of sync with public opinion, then the American people may amend the Constitution or even do away with it. However, this is a decision for the American people themselves and not for appointed Supreme Court Justices.

This is the underlying nature of the battle over the Supreme Court. Unfortunately, the public campaign has been masked by a blitz of negative advertising against Judge Thomas on radio, television, newspapers, and phone banks. This campaign has consisted chiefly of falsehoods and misconstrued actions and statements by Thomas.

Those who would politicize the Supreme Court (university law professors and liberal Democrats) have made the claim that constructionists – such as Judge Thomas – are “outside the mainstream” of American politics. To the contrary, it is those who seek to define the American mainstream who would politicize the Supreme Court. These same people stand even more to lose if the Supreme Court were politicized to the right – rather than toward their leftist goals.

Clarence Thomas represents a man who has every reason to support minority rights and many other liberal causes. Yet Thomas understands that the role of a Judge is to interpret the law (namely, the U.S. Constitution) and defend the rights outlined therein. But a Judge’s role is never to legislate; this belongs to the people and their democratically elected representatives.

Unfair Criticism

One of the unfortunate outcomes of appointing a conservative African-American to the Supreme Court has been the numerous undeserved slurs which have lambasted Judge Thomas. His otherwise exemplary character has been besmirched by ignorance and unqualified criticism.

Patricia Ireland, Executive Vice President of the National Organization of Women, fearing that Thomas’ nomination would overturn the 1973 ruling on Roe vs. Wade, exclaimed: “We’re going to Bork him!” – referring to the defeat of Judge Robert Bork in 1987.

Virginia Governor Douglas Wilder, in an equally reprehensible attack, questioned Thomas’ qualifications by saying: “The question is: How much allegiance is there to the Pope?” Although he once attended a Catholic elementary school, Thomas is an Episcopalian.

Editor’s Note: As of the printing of this article, we believed that Judge Thomas would receive a positive recommendation by the Senate Judiciary committee, and later the required confirmation vote by the Senate. However, we understood that it was possible (knowing the highly politicized nature of recent Court appointments) that Thomas would be rejected.

We would then look to a battle of ideas which would be extended into the 1992 elections. This would be an unfortunate development for the Democratic Party: if Democratic Senators oppose Thomas, they would run the risk of seeming anti-Black and would lose popular support. The Bush administration would nevertheless appoint a strict constructionist to the Court bench before the 1992 election – whether the Judge be Black, Hispanic, Asian, White, male or female. The confirmation hearings will be a triumph for the Constitutional rights of all people according to a strict interpretation of the U.S. Constitution.

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