Bearing the Pain of Affirmative Action

The Shame of Clarence Thomas

    Everybody knows that the boat is leaking
    Everybody knows that the captain lied …
    Everybody knows the deal is rotten
    Old Black Joe’s still pickin’ cotton
    For your ribbons and bows

            - Leonard Cohen

In honor of our Supreme Court I’ve decided to start this piece with a prayer.

Great Spirit of our imagination, have mercy on us stupid, hypocritical bipeds, especially those exceptional examples in black robes who decide whether an armed police officer can strip-search us in public or whether a one-hundred dollar bill has a conscience. Do all you can, Mighty Great One, to allow at least a little light and compassion into the hidden, dark recesses of their august institution.


Now we can get on with this humble, scribbled note from underground.

Considering his appointment history in conjunction with his opinions and voting record concerning affirmative action, if Clarence Thomas had any sense of human decency … No wait a minute. … Given the facts of his career, if Clarence Thomas had any honor, a backbone or a pair of independent-minded balls, he’d stop whining about affirmative action and resign.

 Barbara and George Bush; Clarence and Virginia Thomas and Justice Byron WhiteThe scene of the crime: Barbara and George Bush; Clarence and Virginia Thomas and Justice Byron White

The Supreme Court’s recent banning of affirmative action in a case from Michigan should remind everyone how really offensive the Thomas appointment was and how it smells worse as time goes by. Thomas notoriously sits among his eight colleagues and does not ask questions, which suggests he lacks the intellectual confidence to swim with the big fish on the court. On top of that, he’s a virtual intellectual drone of Antonin Scalia. According to a recent study on Supreme Court justices and political bias, Thomas is the most conservative justice on the court — even more so than his master Scalia. In an insightful article called “The Last Confederate Is Clarence Thomas”, attorney Charles Pierce describes Thomas’ legal philosophy as a bizarre retrograde advocacy of States Rights over the US Constitution reminiscent of pre-Civil War times. Thomas is, he writes, a “staggering political and historical contradiction. He is the last, and the truest, descendant of John C. Calhoun.”

(I realize the use of the word “master” for Justice Scalia may bother some. For example, I can hear Sean Hannity fulminating how it’s “racist” to use plantation terminology. The fact is, unlike Hannity and friends, I don’t speak in dog whistle language and prefer a French horn.)

The reason Thomas should resign is simple: He consistently argues and votes against affirmative action while he is arguably one of the most flagrant and, certainly, the most controversial, case of affirmative action in American history. Thomas decrying affirmative action is like Macbeth opposing murder.

Along with Justice Sonia Sotomayor, Thomas graduated from Yale Law School. Both benefited from affirmative action. While Sotomayor, who wrote a 58-page dissent in the Michigan case, is a ferocious defender of affirmative action due to past injustices, Thomas consistently damns it and votes against it. He wrote the following in a 2003 legal dissent:

“When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement.”

He should know. There’s no question it did in his case.

In his memoir, he said his decision to accept an elite education from Yale Law School was a mistake. “I felt as though I’d been tricked, that some of the people who claimed to be helping me were in fact hurting me. It was futile for me to suppose I could escape the stigmatizing effects of racial preference.”

One naturally wonders where Thomas would have ended up without the elite boost he says ended up ironically “hurting” him? Without that elite 1974 Yale degree, would Missouri Republican Senator John Danford have made him an aide and become his political patron, getting him jobs like the one Ronald Reagan gave him at the Equal Employment Opportunity Commission. Then, President George Bush The First put him on the Appeals Bench for 16 months before elevating him to the Supreme Court.

If in retrospect accepting help was such an unpleasant mistake, why does he remain in the extremely “stigmatizing” role as a blatant affirmative action token on the US Supreme Court? He must be miserable there; the pain he cites must secretly gnaw at him day-in, day-out. You have to wonder how the man lives with himself. After all, Clarence Thomas is not a stupid man. No one is suggesting that. While his earlier job offers and promotions may not have been race-based, there’s no doubt his final one was. He’s a glaring example of the old Peter Principal, which said people tended to be promoted to their level of incompetence, where they remained.

So he sits there in his black robe and says nothing, affecting a posture of rugged individualism to alleviate all the humiliation of being chosen purely because of his race. He has very effectively ingratiated himself to right wing power circles. And, oh yeh, he has figured out how to scapegoat liberals and progressives for his problems. They are the ones plaguing his conscience, not right-wing Republicans who would use his bizarre, anachronistic belief system to back-peddle on civil rights advances.

Every reasonably aware American knows Clarence Thomas is on the Supreme Court due to a high-powered Bush I Administration decision to stand on its head everything that the famous progressive African American Justice Thurgood Marshall stood for. Everyone knows it was Marshall’s affirmative action-based inclusion on the court that created a “black seat” on the court. The crime of it is the Marshall seat was — more important than the race of its holder — a progressive seat focused on civil rights. Clarence Thomas embodies the shame of this cynical theft each and every day he votes with apologists for Wealth and Police Power like Antonin Scalia.

Thurgood Marshall, Clarence Thomas and Antonin ScaliaThurgood Marshall, Clarence Thomas and Antonin Scalia

But maybe I’m living in a fantasyland. Maybe I’m too concerned about human decency versus the cynicism of today’s politics. I guess I’m looking for a 21st Century Joseph Welch, chief counsel for the Army during the Army-McCarthy hearings and the man who famously cut Senator Joe MacCarthy off at the knees by saying, “Have you no sense of decency, sir?” But that was then. Now it’s the era of House Of Cards, the back-stabbing political TV soap derivative of Shakespeare’s Richard the Third. We’re told it’s the Clintons’ favorite TV show.

Clarence Thomas sits up there on that high bench like a mocking minstrel show caricature of affirmative action. Dog whistle racism is real and vestiges of the old horrors linger because we too easily absorb moral outrages like the appointment of Clarence Thomas to the seat held by the civil rights giant Thurgood Marshall.

Critics say Game Of Thrones is making rape as a Machiavellian political act more acceptable. Is it possible that, as with race, life will imitate art and in the coming decades dog whistles will be confusing the issue about rape. We already see signs of erosion and confusion in that realm. There’s an argument that wars corrupt the societies that undertake them; in this sense, one can take on qualities of the enemy in order to prevail against him. Could some of the cruel attitudes of men in Afghanistan wear off on us in the process of 12 years of war? Liberal advances against racism and sexism are never permanent.

As my underground progressive mind works with the fodder of the moment, I imagine the loquacious Nevada rancher Cliven Bundy and mistress-scorned LA Clippers owner Donald Sterling both seeing an ally in Clarence Thomas. In this scene, Thomas and his wife are on a cross-country tour in their big cozy camper. They all getting together in some plush surrounding — maybe on Sterling’s yacht or the porch of Bundy’s ranch house. They eat a dinner of bloody rare steaks from federally subsidized cattle. They’re all having a fine time telling stories and comparing notes how poor black people are so hurt and abused by liberal federal help. As self-made, rugged individuals all, they assure themselves the best thing for poor black folks is what trickles down from their great enterprises. At this point, these giants of the Free Market System are joined by Dick Cheney. They quaff a few cold beers. Then they all head for the quail shooting range.

Of course, this is the fictional ravings of an ungrateful underground man whose liver hurts.

What I really think is that Clarence Thomas is a rigid and bitter man who would benefit from a major change in his life. My suggestion would be that he search his soul and man up, admit he’s a hypocritical example of affirmative action and then resign. I’d be the first to congratulate him for lifting that humiliating burden off his shoulders. I think he’d feel a whole lot better. And Americans would begin to admire him more.