Wednesday, May 25, 2016

Reading the Constitution Right. Clarence Thomas’s fidelity to our founding documents is making its mark on the Supreme Court. By Stephen B. Presser

In 1991, George H. W. Bush nominated 43-year-old court of appeals judge Clarence Thomas, who had been on the bench only 19 months, for a seat on the Supreme Court. The president declared that “race played no part in his selection,” but the statement was hard to believe. After all, Thomas would replace Thurgood Marshall, the first African-American on the Court. Almost everyone assumed that Bush had caved to political pressure to reserve a black seat on the Court, and filled it with one of the few black conservatives on the bench.
Liberals immediately launched withering attacks on Thomas’s fitness for the highest court. The dean of the University of Chicago’s law school, eminent civil libertarian Geoffrey Stone, echoed the legal academy’s general opinion when he said: “I think, in all candor, [Thomas] fairly could be labeled ‘strange.’ Not in terms of right or wrong, but in being further outside the mainstream of constitutional interpretation than Bork”—Supreme Court nominee Robert Bork, that is, whose nomination Senate Democrats had shot down in 1987. Black leaders, despising Thomas’s political views, were particularly harsh, calling the nominee a “chicken-and-biscuit-eating Uncle Tom,” a “virulent Oreo phenomenon,” and an “assassin,” among other vicious insults. But even conservatives were dubious.
Then, as everyone knows, Thomas’s former employee, Anita Hill, brought eleventh-hour
accusations of sexual harassment against him, testifying before a special Senate hearing in what the nominee dubbed a “high-tech lynching.” The Hill fiasco nearly derailed Thomas’s seat on the Court, with many Americans questioning his honesty. The Senate eventually confirmed him in a 52–48 vote—the smallest margin for any Supreme Court justice in a century.
What’s interesting, and perhaps surprising, is that, 16 Court terms later, Thomas has quietly proved himself to be a serious constitutional thinker, who displays—for those sympathetic with his conservative jurisprudence, anyway—both great independence and considerable wisdom. Thomas forcefully rejects the notion, long favored by liberals, that the Constitution is a “living document” and that Supreme Court justices should creatively adjust the meaning of its terms to afford more protection to minorities, to invent such unenumerated rights as the “right to privacy,” and in general to promote “progressive” ends that the Left can’t seem to win at the ballot box. Instead, he has become the Court’s most persuasive exponent of “originalism”—the view that justices should interpret the Constitution as meaning what it did to those who read the document when it was framed. Since originalism is the jurisprudence most compatible with our republican form of government and the intentions of the Founding Fathers, it’s looking as though the first President Bush got it right after all when he declared, upon nominating Thomas, that he was “the best man for the job.”

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