Such a capacity for growth, as a Justice develops his or her own constitutional philosophy, is essential if a person is to become a truly great Justice. None of the great Justices of the past, not Justice Black, nor Justices Harlan or Stewart, not Justice Holmes nor Justices Brandeis or Cardozo, not even Justice Frankfurter, for all his years of teaching constitutional law, came to the Court fully formed.
The Court itself, and the individual cases that came before them, shaped them, even as they shaped the Court. In the end, it was as combination of character, ability, willingness to work really hard, and openness to new views that made them great Justices. These qualities, if there truly is openness, matter far more than past positions. Many a Justice has changed his mind dramatically since going on the Court. I hope and believe that Judge Thomas has these qualities, and that is why I am here today.
Thirty years later, it’s hard to imagine what Yale Law School’s liberal-ish dean Guido Calebresi was thinking when he delivered this testimony at Clarence Thomas’s SCOTUS confirmation hearing. In the three decades since Thomas first joined the court, he has “grown” into what just about everyone in the room except Calebresi anticipated: an intellectually inflexible political stooge who has consistently steered as far to the right as humanly possible through a seemingly endless succession of predictable reactionary votes and result-driven opinions. Calebresi’s assessment of Thomas now stands as a monumental misjudgment of the man’s character and capacity for intellectual maturation.
But you know, even if this wasn’t all that obvious to everyone back in 1991, it really should have been. By way of historical background, the dysfunctional politicization of the court (or at least the current iteration of it) really began with Ronald Reagan’s nomination of Robert Bork in 1987, but not for the reasons republicans like to trot out today. Reagan had already appointed a pair of conservatives in O’Connor (1981) and Scalia (1986) with only token opposition, but Bork was a different political animal altogether, one whom a Yale colleague (who actually liked him) described as possessing “an intellectual arrogance that is not shakable,” which gave rise to positions that were “wrong and inconsistent with at least three decades – I think I could fairly say five decades – of judicial history in the Supreme Court.” And the Democratic senate rightfully rejected the nomination, basically saying to Reagan that they’d be happy (or at least willing) to confirm conservatives in the “judicial mainstream” (whatever that is), but that it’s just not kosher to try to strongarm through a dogmatic right-wing ideologue with a long paper-trail testifying to his intransigent reactionary politics. Once Bork was voted down, and Reagan’s second choice withdrew in a puff, the democrats made good on their word, and the senate subsequently approved Anthony Kennedy unanimously.
Reagan’s successor George H.W. Bush, who not so coincidentally was also Reagan’s vice-president, watched the Bork fiasco closely, and he was determined not to let that scenario replay itself during his presidency. But Bush learned the wrong lesson, or perhaps he just learned the sleazier lesson, as he set out not to eschew dogmatic right-wing ideologues with damning paper trails, but to seek out dogmatic right-wing ideologues without damning paper trails. Of course, this approach backfired on him spectacularly the first time around, when his chief-of-staff John Sununu assured him that the heretofore unknown David Souter was a sufficiently crazy conservative, although Souter would ultimately spend his twenty years on the bench driving conservatives sufficiently crazy. In fact, Yankee republican senator Warren Rudman had actually bamboozled both Sununu and Bush on that one. Having internalized Montgomery Scott’s “fool me twice, shame on me” philosophy, Bush found in Thomas a Catholic Reaganite who was enamored with Ayn Rand and Thomas Sowell, married to a hard-right lobbyist who had worked against things like equal pay for women and family leave, and hostile to affirmative action, abortion rights and liberal activists in general. Thomas had minimal (at best) judicial qualifications, but he had hard-to-audit conservative bona fides, and his boot-straps personal story also provided Bush with a golden opportunity to simultaneously bash affirmative action and lay claim to some kind of grotesque parody of wokeness.
If Thomas’s nomination was bad news from an ideological standpoint, his conduct during the confirmation hearings made it pretty clear that the man had no business being anywhere near the Supreme Court in the first place, for at least a couple of reasons. First, he almost certainly lied straight-faced while under oath, when he responded to questions from Pat Leahy that he never – never once, not during law school, not during the eighteen years since the Supreme Court guaranteed a woman’s right to terminate a pregnancy – never participated in a discussion with fellow students or colleagues about the legal reasoning in Roe v. Wade. In all fairness, perhaps he wasn’t lying; perhaps he was simply admitting publicly to having been the most intellectually incurious person ever to graduate from law school. Either way, it’s hardly a resounding testament to his judicial qualifications.
Second, and more importantly, Thomas’s belligerent, enraged response to accusations of sexual harassment demonstrated a wrongheadedness on so many levels, that the Toteboard’s sense of outrage still lingers three decades later. The simple fact was that the judiciary committee received numerous late-breaking, but credible similar-sounding reports of highly questionable behavior, and the only decent way for them to respond (despite republican resistance) was to do their due diligence and investigate the matter further, even as the all-white male committee was pretty clueless about how to do so (and probably had plenty of collective peccadillos in their own past). But Thomas chose not to simply deny the accusations, maintain his dignity, and try to lower the temperature of the room. Instead, he launched into a feverish counter-attack where he labeled the proceedings a “high-tech lynching” that targeted him solely because he was an “uppity black,” and he grew visibly more agitated with each repeated denial, even in response to softball questions lobbed at him by his republican apologists. This was, of course, an insult to women, who often have to endure hostility and humiliation when they air these types of grievances, and who deserve a response better than a knee-jerk cry of victimhood from men in power. And it was an insult to anyone on the judiciary committee – and for that matter, to any American – who wanted to see the matter investigated further, not because Thomas was Black, but because they had some misgivings about the possibility of giving a lifetime SCOTUS appointment to anyone who had a history of engaging in sexual harassment. And you know, it was probably an insult to other African-Americans as well, for him to play the race card so cynically and opportunistically, while having little sympathy for others who may in fact be more entitled to drawing from that deck on occasion. The Toteboard is not entirely sure what exactly constitutes “judicial temperament,” but we certainly know it when we don’t see it.
We all know what happened in the aftermath of those truly bizarre and uncomfortable hearings. Thomas was confirmed by a margin thinner than a coke-soaked pubic hair, and his cartoonish jurisprudence has grown increasingly medieval over the years. But apart from all that, the Toteboard finds it especially disturbing how Thomas has perseverated on those events of late 1991, demonizing his adversaries and mythologizing his own supposed victimhood to an absurd degree. In his autobiography, Thomas took the “high-tech lynching” ball and ran with it, unfavorably comparing opponents of his nomination to hooded Klansmen (yes, really!), and describing his plight as one of being “pursued not by bigots in white robes but by left-wing zealots draped in flowing sanctimony.” If it’s not exactly clear who those “left-wing zealots” were (or are), or what his criteria were (or are) for identifying when the articulation of liberal interests qualifies as “sanctimony,” it is sure as hell clear that the man still harbors unabated bitterness toward those on one side of the ideological spectrum (as well as “elite white women,” “paternalistic big-city whites,” and “light-skinned blacks,” but that’s another story), and it’s really hard to imagine that he has adjudicated cases involving those people or their causes without prejudice. It’s one thing to be a conservative justice sitting on the highest court in the land; it’s quite another to be a conservative justice who holds a personal vendetta against the constituencies that routinely bring cases to that court. Certainly, such comments, taken in tandem with his public coziness with right-wing organizations (and Trump), don’t do a whole lot for maintaining the integrity and credibility of the court.
But there’s something far more alarming here than indications of a persistent bias. Thomas’s interpretation that opposition to his nomination was fueled chiefly by a desire “to keep the black man in his place” is so outrageous and off-the-wall as to call into question his grip on reality (see the original “Bob Newhart Show” at the 9-minute mark). Does he really think those “left-wing zealots” fought against his confirmation because he was Black, and not because he was an unqualified ideologue bent on overturning Warren-Court precedents? Or, to give him the benefit of the doubt, does he really think that what most upset the liberals was that he was a Black unqualified ideologue bent on overturning Warren-Court precedents. Thurgood Marshall, quoting his father, once said “there’s no difference between a white snake and a black snake. They’ll both bite.” Well, the Toteboard would like to go on record as making clear that it would have loathed (and would still loath) Thomas just as much if he were white. Or Asian. Or Hispanic. Or Martian, for that matter. But Thomas would have us believe that a shadowy cabal of proto-socialists schemed to derail him at any cost, plucked Anita Hill out of obscurity, familiarized her with the collected works of Long Dong Silver, and dumped her on the American public, complete with her JD, tenure, and fabricated story. There’s also a certain irony that Thomas has played so fast and loose with his accusations of racism, when he happily accepted support from (and spoke highly in his autobiography of) judiciary committee member Strom Thurmond, someone who had genuinely built his career on keeping the Black man “in his place.” But the issue here isn’t irony, or even bias or hypocrisy. It’s a very real concern that Thomas is prone to distortions of reality, and perhaps even paranoid tendencies. And that’s really not good for the integrity and credibility of the court.
Speaking of delusional paranoiacs – and who isn’t these days? – everything we are learning about Thomas’s wife Virginia just keeps getting more and more unsettling. She has always been a front-line participant on the right-wing fringe, and there have always been questions about whether Thomas and the court have been glossing over inherent conflicts of interest, but things lately have been rapidly escalating to the level of downright scary, and they seem to be getting scarier with each new revelation. Someone probably should have called in a team of psychiatrists right after her infamous “good morning Anita Hill” cold-call twelve years ago – an article in The Atlantic suggested at the time the possibility that “Ginny is delusional” – but it was relatively easy to write that one off as the irrational, uncontrollable acting-out of a woman in desperate need of having her husband’s dubious version of events corroborated. Then there were reports of her one-time involvement with the abusive Lifespring “human potential” organization and her subsequent membership in the almost-as-abusive Cult Awareness Network, which together seem to have juiced her receptivity to assorted conspiracy theories (like that the Sandy Hook massacre was a false-flag operation) and affinity for movements like QAnon. But it’s her texts to Mark Meadows in the aftermath of the 2020 presidential election that really take the cake – in fact, they take the whole bakery. Even without psychiatric training, one can easily see indications of a real delusional paranoia: The belief without evidence that the “Left” (there’s that villain again) is trying not only to “Heist” the election but also somehow to “take America down.” Hallucinations about “the Biden crime family” being hauled off “in barges off GITMO to face military tribunals for sedition.” The Manichaean worldview that the country is in the midst of an epic battle between good and evil that will only come to an end when “the King of Kings triumphs.” The apocalyptic vision of “the kraken” rising up and restoring the country to its rightful Christian theocracy. And oh yeah, let’s not forget her attendance at the January 6 “Stop the Steal” rally and her effusive praise on Facebook – “GOD BLESS EACH OF YOU FOR STANDING UP or PRAYING” – of her fellow head-cases. In response to this, the Toteobard is rendered nearly speechless. Oy vey.
OK, so we know that Clarence Thomas is quite literally in bed with someone who isn’t writing with a sharp pencil, but how much can we extrapolate that he shares the same or similar delusions, and is consumed by the same paranoia, as his wife? Well, we already know that they share the same delusion about the Vast Left-Wing Conspiracy, which according to Virginia is “making it justifiable and normalized to fight us, to hurt us, to kill us even.” As for the rest, that’s a difficult call from the armchair, but it doesn’t inspire a lot of confidence when Clarence claims that “we are equally yoked, and we love being with each other because we love the same things.” Maybe he didn’t exactly say “we believe the same things,” but there doesn’t seem to be any obvious evidence to the contrary, and it certainly doesn’t look good when Thomas was the only member of SCOTUS to dissent when Trump was trying to block the release of documents to the House Select Committee to Investigate the January 6th Attack on the United States Capitol. We’re talking about a lone dissent, a break from not only the chief justice and the three liberals, but also the four other horsepersons of the apocalypse, i.e., Samuel Alito and Trump’s three right-wing appointments, a dissent that we are now learning smells a lot like he was protecting his wife, continuing his role as Trump’s puppet on the court, affiliating with the Stop the Steal wing-nuts, or all of the above. In all likelihood, the two are up to their necks together in the same steaming cauldron of delirious conspiracies, theocratic phantasms, and unhinged apocalypticism. And that, to invoke John Sayles at his most pungent, ”sucks a big dog’s dick.
The Toteboard is of the mind that it’s not a good idea for a delusional paranoiac to be sitting on the Supreme Court of the United States. It’s actually a depressing sign of the times that this matter is even up for debate, but perhaps having had a delusional paranoiac in the White House has normalized a new status quo. “What?” the Toteboard can just hear the republican pod-people sputtering into their Fox News microphones, “You got something against delusional paranoiacs?” Nevertheless, it is encouraging that some long dormant voices are finally starting to speak up about what Sonia Sotomayor calls “the stench of partisanship” that permeates the court. Democrats are beginning to make some noise about crafting legislation that binds the court to an “ethics code,” dealing specifically with conflicts of interest and other appearances of impropriety. Some political writers are suggesting that Thomas should recuse himself from any SCOTUS cases that involve the January 6 violence, and others want to extend that to cases involving political organizations with which his wife has a stake. But this is all chump change. The New York Times finally printed an editorial last week that gently but firmly stated what we all know really has to happen: “Justice Thomas has shown himself unwilling or unable to protect what remains of the court’s reputation from the appearance of extreme bias he and his wife have created. He would do the country a service by stepping down and making room for someone who won’t have that problem.” Yes, it is indeed time for Thomas’s resignation (or retirement, if he prefers to call it that).
But it is not enough for AOC and a few liberal publications to call for Thomas to resign, as Thomas and his enablers will smugly brush those calls aside, just as they have done with similar calls for fair play over the last few decades. It is crucial that this demand somehow find its way smack-dab into the epicenter of the political discourse, and the Toteboard encourages all of its readers to do what you can to get this message out there, and to keep it alive and charged. If you don’t forward this post to friends or share it on social media, then share the Times op-ed instead. Submit a letter to the editor of your local newspapers, post something on your neighborhood listserv, find a custom-made bumper-sticker or campaign-sign. And don’t stop there. Write to your representatives in the House and Senate, engage your clergy and religious community, and, if you have to, shout this message out from your rooftops. The Toteboard doesn’t harbor any illusions that Congress will come to its senses and impeach him – certainly not with republicans holding half the chips – but people can talk about it, and then more people, and then people who may have some power and influence. And then if this story stays on the front-page long enough, if it becomes a mainstay of news broadcasts, of press conferences, and of political gatherings, well then maybe, just maybe, something will happen. And just maybe, the American people will get the justice we all deserve.
After a long, quiet winter, Herman’s Toteboard is back! Stay tuned for future posts on the following subjects:
Linguistic Landmines, Part II
Midterm Elections Preview
Marjorie Taylor Greene (gasp!)