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The Man From Pin Point

Reviewed by Randall Kennedy
Sunday, August 22, 2004; Page BW10


The Life and Times of Clarence Thomas

By Ken Foskett. Morrow. 339 pp. $24.95

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Supreme Court Justice Clarence Thomas is a fascinating subject for a biography. Born in 1948 into a broken home in Pin Point, Ga., he suffered from racial slights and isolation in the early phases of desegregation, obtained a law degree from Yale (one year behind Bill and Hillary Clinton) and worked for a few years as an obscure lawyer-bureaucrat before shrewdly hitching himself to the Reagan Revolution. President Reagan appointed him to lead the Office of Civil Rights in the Department of Education and then chose him to head the Equal Employment Opportunity Commission. In 1990, the first President Bush nominated him to a judgeship on the U.S. Court of Appeals and a year later nominated him to fill the seat on the Supreme Court vacated by the legendary Thurgood Marshall.

At precisely that point, however, Thomas encountered a reversal of fortune that almost destroyed his career. In televised confirmation hearings he was charged with incompetence, indifference to the plight of racial minorities and other vulnerable groups, pornophilia and sexual harassment. A former aide, Anita Hill, alleged that he had imposed upon her with lewd talk and that he had threatened to ruin her professionally if she ever revealed his misconduct. Thomas ultimately prevailed, but only after a brutal struggle in the Senate during which he obtained the requisite number of votes by the slimmest margin (52 to 48) of any Supreme Court nominee in American history.

In the decade that he has served as a justice, Thomas has voted to reverse Roe v. Wade, to uphold the constitutionality of a law that criminalized consensual sex between adult homosexuals, and to invalidate racial affirmative action at the workplace, in schools and in electoral politics. He has not only expressed conservative beliefs in judicial opinions; he has also done so in speeches, in the selection of his law clerks and in social affiliations that have led to such gestures as officiating at Rush Limbaugh's wedding. Armed with life tenure, Thomas is the most securely rooted African American in the highest circles of government. He obtained his position in no small measure because of the racial allegiance of blacks who yearned to see the elevation of "one of their own" even if they disagreed with his policies. Yet some who initially supported his confirmation have now renounced him. Among professional blacks, especially lawyers, he is widely ostracized and routinely vilified as an "Uncle Tom." Detractors have succeeded in making his very name a synonym for opportunism; for many blacks, to pull a Clarence Thomas means to sell out.

Although Justice Thomas has already attracted a considerable amount of attention, his unfolding career continues to offer new avenues for journalistic and academic investigation. Unfortunately, Ken Foskett's new biography, Judging Thomas, is an opportunity squandered. An investigative reporter for the Atlanta Journal-Constitution, Foskett displays no sustained interest in Thomas's judicial handiwork. He vaguely describes a few of Thomas's most widely reviewed opinions up to 1995 and then ignores almost wholly Thomas's subsequent decisions. He allots no attention at all to Thomas's key vote (for Bush) in the Court's 5-4 ruling in Bush v. Gore.

Foskett titles his book Judging Thomas but offers no framework for doing so. He echoes Thomas in rightly criticizing detractors who condemn rulings about which they are ignorant. Yet Foskett himself neglects to pay his subject the courtesy of seriously considering the legal work that is presumably at the center of any justice's professional life. Symptomatic is his treatment of Thomas's allegiance to "originalism." Originalism holds that the Constitution should be interpreted according to the intentions of its original framers and ratifiers. Unfortunately, Foskett offers no guidance regarding the merits and demerits of originalism. He neither probes nor even mentions the difficulty posed by the likelihood that had the Supreme Court applied the robust version of originalism that Justice Thomas has endorsed, it would have upheld rather than invalidated racial segregation in schooling and anti-miscegenation laws. (This is, of course, notably paradoxical inasmuch as Justice Thomas is married to a white woman in a state that prohibited marriage across the race line until the Supreme Court barred it from doing so in the most aptly titled case in all of American legal history -- Loving v. Virginia).

The absence of rigor that characterizes Foskett's approach to Thomas's jurisprudence also characterizes his approach to Thomas's racial politics. Foskett could have made a useful contribution by merely describing Thomas's thought in detail. How does Thomas reconcile his championing of "color blindness" with his assertion to the predominantly black National Bar Association that he feels "a special responsibility to help our people"? Where on the spectrum of black public opinion are Thomas's views? Are they as atypical as some detractors suggest? Or are his views, especially his socio-cultural sentiments, more popular than often recognized? Slighted in Foskett's account, these are questions that would at least be broached in a good biography. Foskett sheds disappointingly little light on a question that is at the heart of ongoing battles over Thomas's reputation: Was he truthful or deceitful in his testimony under oath before the Senate during his infamous confirmation hearing? With respect to Anita Hill's testimony that Thomas harassed her sexually, Foskett forgoes close analysis of competing claims and instead limits himself to a rather conclusory character defense. "Bullying a woman," he writes, "simply wasn't in Thomas' nature." Foskett is similarly superficial in his approach to an aspect of the hearings that is even more troubling than Hill's allegations in terms of what it reveals about both Thomas and the Senate that confirmed him. In replies to questions, Thomas stated that he had never "debated" Roe v. Wade and had come to no decision in his own mind as to whether it had been properly decided. If this response was true, it disclosed a disturbingly isolated jurist who might well have been viewed as too incurious, too indifferent, too ignorant to sit on the nation's highest court. If this response was false, it disclosed a jurist willing to disregard an oath and lie to the Senate.

A book that Foskett never even mentions -- the strongly partisan, pro-Thomas biography by Andrew Peyton Thomas (no relation to the justice) -- reveals that, in striking contrast to his testimony, the nominee had in fact discussed Roe with friends and allies and had already developed an antipathy to it. Andrew Peyton Thomas describes his subject's replies to questioning as "misleading" and notes that even some of the justice's strongest supporters were distressed by what they perceived as his lying. Now one might possibly concede that Thomas lied but nonetheless support his confirmation on the grounds that confirmation hearings are understood by those "in the know" as rituals in which the Senate actually demands and expects a substantial amount of untruthfulness on the part of a nominee. The justice himself is reported by Andrew Peyton Thomas to have stated, following his searing experience, that "There is an inherent dishonesty in the system. It says, don't be yourself. If you are yourself, like [Robert] Bork, you're dead." Is this an admission of dishonesty? If it is, ought it be excused? These are the sorts of knotty issues that should be of compelling interest in a book aimed at judging Thomas. Foskett, however, minimizes, overlooks or evades them.

Finally, a lamentable carelessness suffuses Foskett's narrative. Sometimes it shows up in simple errors. Michael Harrington did not write How the Other Half Lives; that classic was written by Jacob Riis; Harrington wrote The Other America. Attorney General Robert F. Kennedy was not "the first white man at the Justice Department to lift a finger for black folk." In the 1950s, Attorney General Herbert Brownell and other white officials made sure that the Justice Department filed amicus curiae briefs supporting the NAACP in its attack on Jim Crow segregation in Brown v. Board of Education and other landmark cases. In other instances, Foskett's negligence displays itself in his handling of evidence. He often treats memory -- recollections of a situation or event -- as tantamount to history -- what actually occurred. Repeatedly he quotes people whom he interviewed -- usually Thomas's friends, allies, subordinates and colleagues -- and offers their statements as evidence of a given proposition without establishing why these sources ought to be believed despite the risk that sycophancy, collegiality or some other sort of potentially biasing influence has distorted their testimony.

A related difficulty arises when Foskett quotes someone who, describing Justice Thomas in high school, speaks of the confidence that he derived from excelling in sports. The problem is that this friend, the commentator Armstrong Williams, did not even meet Thomas until much later -- long after the justice had finished his schooling. Clearly what Williams was offering to Foskett was not his own firsthand impression but rather something he heard from someone else. Perhaps Foskett decided to use Williams's remark after taking into account its attenuated value as hearsay. Yet one wonders -- to be candid, one doubts -- whether Foskett gave this matter much thought.

Although Judging Thomas is marred by other deficiencies, cataloguing them would be of marginal use. Hopefully before long there will be a new biography that examines with care the life and times of the nation's 106th Supreme Court justice. •

Randall Kennedy is a professor at Harvard Law School.

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