X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A bombshell is buried deep within “Judging Thomas,” Ken Foskett’s engaging biography of U.S. Supreme Court Justice Clarence Thomas. It has nothing to do with Anita Hill’s sexual harassment claims that nearly sank Thomas’ 1991 nomination, although Foskett’s conclusions about that episode are bound to spark arguments. Nor does it deal with the affirmative action policies Thomas detests, even though Foskett shows how the justice was a beneficiary of them in high school, college, law school and � reluctantly — early in his career. It’s a comment from Justice Antonin Scalia, whom critics have suggested is Thomas’ ideological guide on the high court. Thomas, says Scalia, “doesn’t believe in stare decisis, period.” “If a constitutional line of authority is wrong, he would say let’s get it right,” says Scalia. “I wouldn’t do that.” Foskett, an investigative reporter for The Atlanta Journal-Constitution, proves Scalia’s point by referring to U.S. v. Lopez, 514 U.S. 549. In the 1995 decision, Thomas said the court should abandon its Depression-era test for deciding if a federal law goes beyond Congress’ power to regulate interstate commerce. “It was a brash critique of Court precedent and established Thomas as perhaps the Court’s boldest conservative,” writes Foskett. Scalia’s remark — that his fellow justice does not believe in the key principle of our society’s rule of law — deserves more attention. But Foskett devotes the book to Thomas’ life story, not his jurisprudence. Understanding the man, Foskett suggests, will make it easier to understand Thomas’ decision making. Foskett’s move is understandable. Avoiding case citations, long quotations and legal punditry certainly helped him keep the narrative to a brisk 339 pages that go from Thomas’ slave ancestry to his current days on the high court. When Thomas leaves the bench decades from now — at 56, he’s 28 years younger than the court’s oldest member, 84-year-old John Paul Stevens — scholars will write books analyzing his decisions. Likewise, Foskett’s 50-page treatment of Thomas’ troubled confirmation can only frame the funhouse mirror the process resembled. To be sure, books as long as Foskett’s account of Thomas’ entire life have analyzed Hill’s claims that Thomas sexually harassed her while he was her boss at the Equal Employment Opportunity Commission. In outlining the Hill segment of Thomas’ life, Foskett refers to several of these books, including Hill’s memoir “Speaking Truth to Power,” which is footnoted once. Foskett notes that Hill declined to be interviewed. But he relies most heavily on “Resurrection: The Confirmation of Clarence Thomas,” by former Sen. John C. Danforth, the Missouri Republican who gave Thomas his first job and was his chief sponsor during the confirmation. The Danforth book is footnoted 12 times. Near the end of the section on Thomas’ confirmation crisis, Foskett makes a bold statement: He believes Thomas. “In the end Thomas and Hill remained the only two people who knew what transpired between them, and each told a different story,” Foskett writes, noting that the two had a social relationship of some form before they worked together. “Although it was plausible that Thomas said what Hill alleged, it seemed implausible that he said it all in the manner Hill described. “Bullying a woman wasn’t in Thomas’s nature and ran contrary to how he conducted himself around others in a professional environment. And if the context wasn’t as Hill alleged, was it fair to turn private conduct into a political weapon to defeat his nomination?” Foskett asks. THOMAS’ FAMILY TIES Some of the most interesting parts of “Judging Thomas” take place on the Georgia coast where Thomas grew up. Relying on estate, property and tax records, Foskett tracked the justice’s ancestry back to Liberty County slaves whose family was torn apart in the 1830s as part of an inheritance split among their owner’s five children. In an interview, Foskett said that his research into Thomas’ ancestry uncovered facts even the justice did not know. Also, drawing from dozens of interviews with friends and family — and a scoop-worthy seven hours of interviews with Thomas — Foskett vividly recounts the justice’s harsh and inspiring grandfather, Myers Anderson, who raised Thomas and his brother. Anderson comes across as an enigma. A hard-working man who gave away food to poor families, he ignored his out-of-wedlock daughter, Thomas’ mother, until his wife forced him to take Thomas and his brother into their home. Foskett takes readers through the 1960s as Thomas benefits from the efforts of a Catholic high school, Holy Cross College and Yale Law School to accept more black students. The mixed blessing of affirmative action becomes apparent; Thomas gets an education he would have been denied otherwise but also feels great resentment that his accomplishments may be dismissed as the product of social policy. Today Thomas continues to infuriate liberal black groups because his decisions do not reflect those of the late Justice Thurgood Marshall, an affirmative-action supporter whom Thomas replaced. Foskett shows that as early as college, Thomas had an independent streak, arguing that blacks should not form their own dorms or sit by themselves at mealtimes. Likewise, Foskett shows how at Yale, Thomas’ conservative legal philosophy already was brewing. Contrary to conventional legal thinking at the time, he was arguing that the courts were allowing Congress too much power to regulate interstate commerce. ATLANTA DREAMS DASHED Of particular interest to Atlanta readers will be Foskett’s account of Thomas’ job search during his last year at Yale. In at least two speeches given at law school graduations, Thomas has said that when he was in the graduates’ position, he was very upset at having not been offered a legal job in Atlanta, where he had hoped to settle down. The only offer he received, he has said, was a position at the unglamorous Missouri attorney general’s office in tiny Jefferson City (from Danforth, whom Foskett reports wanted to diversify his staff). Foskett explains that Thomas was particularly disappointed that he did not get an offer from Kilpatrick, Cody, Rogers, McClatchey & Regenstein (now Kilpatrick Stockton), which in the fall of his third year had brought him to Atlanta for two days of interviews. According to Foskett, Thomas was told initially that the firm wanted to hire him but already had given offers to too many other students. But three months later, the firm called back and offered him a job. Despite being offered $4,000 more than the $11,000 a year he’d earn in Missouri, Thomas kept his commitment to Danforth. FAN OF RUSH LIMBAUGH, AYN RAND Foskett also unearths a few curious facts about Thomas. His favorite movie is “The Fountainhead,” based on the Ayn Rand novel about a fiercely independent architect who dynamites his own building rather than see his ideas compromised; each year Thomas hosts a required screening of the movie for his law clerks. Also, Foskett reports that among the things that cheered Thomas during his recovery from his confirmation battle was discovering Rush Limbaugh. “He listened for hours on end to the conservative commentator blast the liberal media and excoriate the Democrats on Capitol Hill,” Foskett writes. “Limbaugh’s rants gave voice to his own anger.” Jonathan Ringel, who writes about appellate courts for the Daily Report , covered the U.S. Supreme Court in 2000 and 2001 for American Lawyer Media’s Washington bureau.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.