By Emma Coleman Jordan
Sunday, October 14, 2007
" As far as I'm concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves."
With his Supreme Court nomination on the line in 1991 over the sexual harassment charges made by Anita Hill, Clarence Thomas famously played the highest race card in the deck of American history: the lynching of black men for real and imagined sexual offenses.
Sixteen years later, lynching and its symbols are rarely far from the national consciousness. Just last week, an African American Columbia University professor found a noose hanging on her door. A younger generation has adopted the noose as an emblem of racial intimidation, harking back to the era when violent mobs of whites could keep blacks in their place by mutilation and murder without fear of prosecution. Nooses have been the centerpiece of recent racial conflicts at schools in Jena, La., and College Park.
Thomas explained that he emotionally invoked this imagery at the Senate hearing because he had a firsthand understanding of the lingering effects of this history of racial violence. Unfortunately, his legal reasoning since suggests that this powerful show of indignation was a self-interested, even cynical, misappropriation of a potent symbol of national shame.
I first heard the lynching metaphor being used to defend Thomas when I was a guest on "The Phil Donahue Show" the day before the 1991 hearings began. I was then counsel to Anita Hill. Linda Chavez, now a conservative commentator, defended Thomas on the show. Toward the end of our exchange, Chavez turned to me. "This is what they used to do to black men in the South," she lectured, almost shouting. "This is a lynching."
Surely this is a miscalculation, I remember thinking; the rhetoric is really getting out of control. Little did I know that the metaphor would soon become the emotional centerpiece of the Thomas defense. The same words -- delivered by an angry black man facing an all-white male panel of senators -- would have a vastly different impact from the Chavez trial run.
Lynching is a powerful symbol of America's racial past precisely because it sits astride a deep and largely invisible divide in the memories of blacks and whites. Blacks and whites sometimes have conflicting and irreconcilable accounts of the use of horrific violence to keep blacks "in their place" between the end of the Civil War and the civil rights movement of the 1960s. Lynching still touches an intensely sensitive nerve because it conjures up multiple images: violent enforcement of residential segregation, brutality and unfairness in the criminal justice system and myths about black male hypersexuality.
Thomas's new autobiography, "My Grandfather's Son," vents his rage and indignation over what he believes was his humiliation by haughty senators and "left-wing zealots." He was also acutely aware of the impact of lynching on his and his grandfather's lives during the 1991 hearings, he writes: "Segregation, lynchings, black codes, slavery: the endless litany of injustices raced through my head."
"I was intensely aware of America's long and ugly history of using lies about sex as excuses to persecute black men who stepped out of line."
Decades ago, his grandfather's fear of lynching led him to limit his travel to "the three contiguous counties that he knew well" and to warn his grandsons to avoid the "mistake of leaving home."
Thomas goes on to voice his rage at the limitations on his life options imposed by private hate groups: In the '50s and '60s, "blacks steered clear of many parts of Savannah, which clung fiercely to racial segregation for as long as it could."
"The Ku Klux Klan held a convention [in Savannah] in 1960 and 250 white-robed members paraded down the city's main street one Saturday afternoon. No matter how curious you might be about the way white people lived, you didn't go where you didn't belong. That was a recipe for jail, or worse."
As late as 1972, the summer after his first year at Yale Law School, Thomas and his first wife encountered a billboard that said "The United Klans of America Welcome You" when they crossed into North Carolina while driving from New Haven to Atlanta.
Thomas labeled his rage at the racism he'd endured "the beast." He admitted that he lost his battle with it in the summer of 1968, when it consumed him from within. "I couldn't accept the way the white man had treated [his beloved grandfather]. Somehow, some way, he and others like him had to be avenged."
But once the 1991 confirmation battle was behind him, Thomas revealed through his legal opinions a very different view of lynching's social legacy. In several cases challenging affirmative action programs, Thomas adamantly refused to consider the history of racial discrimination and violence as justifications for remedies designed to right discriminatory wrongs.
Last term, Thomas's concurring opinion in a hotly contested pair of school cases from Seattle and Jefferson County, Ky., provided the clearest window yet onto his views about whether the court should consider the heritage of racial violence.
Thomas sided with the conservative wing of the court, which ruled that using race as a criterion in assigning even a limited number of pupils was unconstitutional. Thomas disagreed with the moderates on the court, who sought to correct a pattern of "resegregation" in which more than one in six black children attends a school that is 99 to 100 percent minority.
A pivotal question in both school cases was what importance should be given to past racial discrimination, including the racial violence that laid the foundation for today's patterns of residential segregation. In his definitive study of racial violence in Kentucky from 1865 to 1940, the historian George Wright concluded that "no black person within Kentucky was immune from attacks by whites. . . .The entire legal system upheld white violence by refusing to apprehend, charge and convict white offenders of blacks." The violence in Kentucky could be seen in the "destruction of black schools and property, in forcing all blacks in certain areas to leave the community, in the denial to blacks of [a] right to fair trials, and [in] the cold-blooded murder of blacks, often at the hands of lynch mobs."
On the bench, Thomas dismissed the implications of this history of racial violence in Kentucky. But when it was to his advantage in his confirmation fight, he asked the nation to share his outrage at being treated like a lynching "victim" at the hands of a Senate Judiciary Committee stacked with white male "lynchers."
If the court had taken notice of past racial violence, it would have reached the opposite conclusion in the schools case.
In Thomas's worldview, the consequences of lynching appear to apply only to him personally. Lynching counts as a device in writing a dramatic autobiography, not as a factor in interpreting our laws. By Thomas's legal reasoning, the hundreds of thousands of minority children who attend racially resegregated schools have no connection to the nation's history of lynching and white race riots.
This history of violence has shaped the very boundaries of our neighborhoods and our chances of achieving the American dream. Residential segregation today provides the foundation for school resegregation and the attendant inequality of public schools. All this will limit the opportunities of hundreds of thousands of poor and minority children, still growing up in a world very much like the impoverished circumstances Thomas describes so vividly in "My Grandfather's Son."
I can only scratch my head at Thomas's blindness to the current impact of the history of real lynchings. Forgive my bewilderment when this convenient loss of vision comes from a "lynching victim" with so much power.
Emma Coleman Jordan is a professor of law at Georgetown University Law Center and author of the forthcoming "Blood at the Root: Lynching, Divided Memory, Race and Justice in American Law."