Thomas v. Marshall

We begin not with Clarence Thomas, but the remarkable jurist he replaced: Thurgood Marshall. Even if he never sat on the Court, Marshall would be remembered as one of the great attorneys of his generation – successfully arguing the biggest case of the 20th century – Brown v. the Board of Education – and coming away with a unanimous decision. Marshall won 29 of 32 cases he argued before the Supreme Count – and another 14 out of 19 as US Solicitor General. Fighting to expand American civil liberties for more than 50 years, first as a civil rights litigator and later as an Associate Justice, Marshall’s contribution to American society compares with any lawyer or judge of his era.

Clarence Thomas, however, was NOT nominated to the Supreme Court for his talents, but in spite of them. He’d been an undistinguished civil servant when he was nominated to the DC Circuit. After just 16 months as an undistinguished appellate judge, he was nominated to the Supreme Court to fill Marshall’s seat.

The ABA gave Thomas the lowest rating of any Supreme Court nominee of at least the past 40 years. ALL of the Court’s other 8 current Justices, as well as retired Justices Souter and Stevens, were unanimously rated “Well-qualified”. Thomas, by comparison received 13 votes of “Qualified”, and 2 votes of “Not Qualified” from the 15 member panel.

The past 23 years have borne out the ABA’s judgment. Thomas has been a cipher – silent during oral argument – and so outlandish in his opinions that he can rarely get four other justices to sign on. The one area in which he’s distinguished himself is in his assault on the rights of prisoners – advocating to make prison beatings permissible under the 8th amendment. (Yes, really.) Thomas isnt a bad justice – he’s an abomination.

Thurgood Marshall would be remembered as a great jurist even if he had never sat on the Court – Clarence Thomas should never have sat on the Court, even if no one had ever heard of Anita Hill or Angela Wright. Their accusations – well-evidenced and entirely credible – unfortunately distracted from an equally valid concern: that Thomas was AND IS unfit to be on the Court – not only for his poor character, but for his incompetence.

Every so often, as happened recently, Thomas is heard to whine about our modern sensitivity regarding race. Perhaps he is so unreflective – perhaps no one ever delivered the news: in the absence of those sensitives, Thomas would never have been nominated to the Court. His condemnation of affirmative action is utter hypocrisy: he had no trouble with it when he was its beneficiary. Thomas likes to recount how his Yale law degree was scoffed at by prospective employers, skeptical that he made it into Yale on the strength of his talents. Perusing some of his many hysterical lone dissents – defending a strip-search of a 13 year-old girl for 2 Advil tablets; insisting that the Voting Rights Act is unconstitutional; arguing for a presidential power to hold a US citizen indefinitely, without going before a judge; and at every opportunity: that beating prisoners, no matter how brutally, is fine under the 8th amendment – one reasonably wonders what Yale saw in him.

To be fair, not a single Justice on the Court today bears up in comparison to Marshall. But in one Court opinion after the next, and one interview after the other, far from washing out the stain with which he arrived to the Court, Thomas has only deepened our conviction that not only was he an absurd successor to the remarkable Thurgood Marshall – but that he lacks the minimum of skill, judgment and conscience required of his office.



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