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Anita Hill’s 1991 charge that Clarence Thomas had sexually harassed her during their tenure together at the U.S. Department of Education and the Equal Employment Opportunity Commission was the most explosive accusation in the history of the U.S. Supreme Court confirmation process. In her 1997 autobiography, Speaking Truth to Power, Professor Hill presented her version of events. In his newly published autobiography, My Grandfather’s Son, Justice Thomas has presented his. Hill responded in an Oct. 2 op-ed in the New York Times. The historical record has been enriched by both what Thomas says in his autobiography about Hill and what she says about what he says. However, it’s time to close the chapter and move on. After all, until recently, both Thomas and Hill appeared to have done so. He is in his 17th year on the Supreme Court. She is a respected professor at a prestigious academic institution, Brandeis University. Focus should be on his opinions What we don’t need is more partisan squabbling about the Thomas-Hill imbroglio. Unfortunately, it has already started. To mention but two examples, Eugene Robinson opines from the left in an Oct. 2 Washington Post column that Thomas “has a persecution complex of Norse-saga proportions,” while Rich Lowry remarks from the right for National Review Online that Hill’s charge was a “brutal instance of the politics of personal destruction.” These are clever lines from gifted political commentators, but they don’t contribute anything of value to what should be the question today: Are Thomas’ judicial opinions worthy of our respect? I think they are, even if I don’t always agree with them. Take, for example, Thomas’ dissenting opinion in the 2003 case of Virginia v. Black, in which he insisted that cross burning is not expressive conduct and is therefore entitled to no First Amendment protection. As I write in a recent symposium on Thomas’ First Amendment jurisprudence, Thomas’ position is inconsistent with his support for symbolic speech during his 1991 confirmation hearings; his vote in a 1991 case, R.A.V. v. St. Paul, to reverse on free speech grounds a criminal conviction for burning a cross; and his concurring opinion in 1995′s Capitol Square & Advisory Board v. Pinette that erecting a cross is a political act by the Ku Klux Klan. Thomas’ rationale for why he has changed his position on hate speech � at least when the expression of hate is the burning cross � is certainly understandable. He has come to fully embrace the view that the burning cross is such a unique symbol to the African-American community that it deserves no protection under the Constitution. However, his current position is not immune from criticism. It could be argued, for instance, that a personal jurisprudence based on unique symbols such as that now advanced by Thomas lends itself to justifications for others. A Jewish Orthodox Supreme Court justice might conclude that the First Amendment doesn’t protect the public display of a swastika by a neo-Nazi group, while a Catholic justice might not protect the public desecration of a crucifix by an anti-papist. At some point the list of “unique” symbols could be expanded to such an extent that the First Amendment would be a guarantee of nothing but political correctness. No one, especially not Thomas, is in favor of that. But his dissenting opinion in Virginia v. Black raises that possibility, and I think it’s important for someone to point that out. In short, perhaps now that Thomas and Hill have each presented their side of the story about what happened between them two decades ago, we can move beyond what happened then and start paying more attention to what is happening now. In the off chance that anyone missed it, the Supreme Court does have important cases to decide this term. Scott D. Gerber is a law professor at Ohio Northern University and a senior research scholar at the Social Philosophy and Policy Center. He is author of, among other works, First Principles: The Jurisprudence of Clarence Thomas (NYU Press 1999; expanded ed. 2002) and The Law Clerk: A Novel (Ohio Northern University Press/Kent State University Press 2007).

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