The latest smear campaign against Clarence Thomas
Judge Clarence Thomas and his wife Virginia (Ginni) graced the cover of New York Times Review on February 27 in the middle of an eleven-page article titled “The long crusade of Clarence and Ginni Thomas.” The authors are Danny Hakim and Jo Becker.
It is essentially a best-selling article, and the latest of several left-leaning outlets aimed at undermining the legitimacy of Justice Thomas’ case law. The first salvo came in late January from longtime Thomas antagonist Jane Mayer in the new yorkerbut other eager reporters walked through Mayer’s muddy footprints.
Three of their publications — the New Yorker, the Guardian, and CNN — contacted me because Ginni Thomas sits on the advisory board of my organization, the National Association of Scholars (NAS). My organization has filed amicus briefs in two college admissions cases that are currently before the Supreme Court, Students for Fair Admissions vs. Harvard College President and Scholarsand Students for Fair Admissions, Inc. c. University of North Carolina. Both advance the claim that racial preferences unlawfully discriminate against Asian American applicants. The NAS amicus briefs are on the side of the plaintiffs.
It’s not new to us. We have been fighting racial bias and engaging as a friend of the court in relevant cases for thirty years.
What makes this news, at least in the eyes of Mayer and some other reporters, is that Judge Thomas may be inappropriately influenced by his wife, who, because she sits on my advisory board, may be considered as likely to influence his opinion at the present time. -combined Students for Fair Admissions arguments in favor of NAS’ arguments. It’s quite exaggerated, so much so that Hakim and Becker in their NYT article apparently decided not to pursue the theory. They offered a more holistic view of what they see as the Thomases’ insidious relationship to the well-being of the United States. I will come back to this, but first an air freshener.
I’ve known Ginni Thomas for about a decade. I have never met or spoken to Judge Thomas. The NAS Advisory Board is separate from the Board of Directors responsible for setting NAS policies. The advisory board is made up of a dozen prominent individuals who offer guidance and advice from time to time when I call on them. Ginni’s advice and guidance has focused almost exclusively on my organization’s efforts to identify and reach grassroots supporters. She and I never talked about a case that might go to the Supreme Court, and I doubt that before the recent rush of articles she had any idea that NAS had filed amicus briefs. in the Harvard and UNC cases.
The allegation that Ginni was carrying NAS coals up the steps of the Supreme Court was something Mayer had made up out of thin air, and then others had repeated. It’s a phenomenon that has become all too familiar in the world of Nikole Hannah-Jones journalism.
But the attacks on Ginny and Judge Thomas extend far beyond that stray arrow. The fundamental accusation that Hakim and Becker have made is that, following the 2020 presidential election, Ginni Thomas’s advocacy for action to challenge the election results would (potentially) compromise the Supreme Court. “Because Supreme Court justices don’t want to be seen as partisan,” they write, “they tend to avoid political events and entanglements, and their spouses often keep a low profile. But the Thomases defied those standards.
This is a rather slippery premise for the article that follows. others have written point by point denials of these attacks. But rather than re-plowing this ground, I would like to focus on the question of why the journalistic left launched this assault.
The Supreme Court maintains at some level a fig leaf pretense that the justices are nonpartisan, but few give it any credence. There are two important exceptions. Chief Justice John Roberts, speaking at a New York synagogue in September 2019, said the Court was keeping out of politics: “This is not how we operate in the Court and the results of our cases do not suggest otherwise,” he said. On other occasions, he compared the role of judges to baseball umpires who call balls and strikes, regardless of the ideology and opinions of the crowd.
Roberts’ defense of the idea that the Court is a neutral body that reads and applies the Constitution without ideological bias has left many observers perplexed. After all, he’s the man who stretched the law like Silly Putty to avoid condemnation of Obamacare’s legitimacy and came up with some very inventive reasons to side with the liberal minority on the court. His comments on the Court’s neutrality do not square with his personal case law, which often seems to have a finger-in-the-wind quality. If “neutrality” means opportunistic inconsistency, Roberts definitely provides a model.
There is another judge who offers a stronger model of political impartiality. Justice Thomas strongly defended the original meaning of the Constitution, let’s drop the chips where they may. It is a case law that deeply annoys progressives who favor a “living Constitution” that sprouts new “rights” and distinctions as often as the cherry trees in Washington sprout new blossoms each spring, but it is still deeply nonpartisan. It comes down to a firm belief that the law is the law and that the Court’s job is to apply it without any nuance of favoritism to any political or social cause. This, of course, earns him no praise from those who view the Court as merely a vehicle for advancing the progressive political agenda.
For this reason, progressives would like to see Judge Thomas neutralized. One way to do that would be to pack the Court, and President Biden is apparently planning to do that. He appointed a 34-member advisory commission to the Supreme Court last year that submitted a 294 page study at the White House in December. It attracted surprisingly little attention, even though it included a 38-page chapter on “The Composition and Size of the Court” that left the door open for court packing.
But such a decision would encounter strong political resistance and, in any case, would take a long time. The Court will decide Students for Fair Admissions long before that could happen. What could possibly dismiss Judge Thomas in the meantime? Progressives, of course, assume that Judge Thomas would vote in the case in favor of the plaintiffs. No one knows for sure, but Thomas’ opinions in other cases of racial preference make this assessment very plausible.
Thomas generally prefers to read our constitutional law as promoting equal justice regardless of race. Racial preferences require a tortured reading of both the Constitution (especially the Fourteenth Amendment) and statutory law (the Civil Rights Act of 1964).
So what could remove Judge Thomas from the equation? How about a concerted media push to cast him as a pawn of his wife’s political activism? Or, if not a pawn, at least an enthusiastic partner? Even if that rhetorical onslaught failed to persuade Judge Thomas to recuse himself from the case, it might succeed in isolating him from other judges whose spines are known to be a bit more flexible. Thomas is a leader in the Court. But a national campaign to portray him as a creature of election-denying right-wing hacks could create just enough suspicion to marginalize his views. Better still would be to demoralize Thomas himself, but Joe Biden tried that in 1991 and the guy turned out to be a badass.
The idea that Justice Thomas is somehow defying law or Supreme Court tradition by not recusing himself Students for Fair Admissions is a call to the ignorant, or as we now call them “uninformed voters”. (That slur was coined as a bashing of populist conservatives, but it applies much more accurately to liberal conformists oblivious to voter fraud and terrified of Covid.)
Students for Fair Admissions relates in part to Harvard College. Two Supreme Court justices, Stephen Breyer and Elena Kagan, are Harvard graduates, and Kagan was dean of Harvard Law School. They have a much more apparent conflict of interest than Thomas. Yet, to my knowledge, no one has asked them to recuse themselves. A careful observer has compiled a useful instance list where current or recent judges have failed to recuse themselves in cases where they had glaring conflicts of interest. No law required them to do so, and whatever “tradition” might have prompted them, they fortunately chose to stick with the cases.
That is to say, the drumbeat to demonize Judge Thomas is, like many progressive pleas, profoundly hypocritical.
I have not said anything so far about Virginia Thomas, who was also the victim of this assault. On this, I will limit myself to a few words of personal testimony. Ginni is an exceptionally intelligent and capable defender of conservative political and social views. My own opinions coincide with hers on some issues and diverge on others, and I have always found her ready and willing to talk about our differences. The most important bond between us is his recognition of the role higher education plays in shaping the character of the American people. Many conservatives have long shunned higher education, either because it was a lost cause or because it had too little political clout to merit the time and attention it would take to reform it. Ginny, on the other hand, sees education in general, and higher education in particular, as the essential battleground for the country’s future.
She acknowledges, for example, that the outrageous partisanship of the press is the result of the left’s success in capturing the universities and raising generations of journalists and opinion writers who know little of American history outside of the narrow perspective they have acquired through their contempt for America. professors, and whose conception of the press is marred with antagonism to the impartial search for truth.
Ginni’s views on these issues are more open-minded than those of many people I meet who consider themselves conservative. She is for me a vital link to a grassroots movement that can help the National Association of Scholars’ efforts to restore the vital center of American education.
She is an important ally of NAS and I am grateful to her for serving on our advisory board. That she happens to be married to Judge Thomas is a good thing. I like to think that he shares his general vision of American civilization and, in this sense, I can perhaps draw inspiration from the New York Times Review item. That’s not what Hakim and Becker (or Mayer and the others) intended, but it’s not implausible to assume that the Thomases share a love for their country and the civilization of which it is a part. All the more reason for us to be grateful to have them both in our public lives, even if they walk very separate paths.