The Effects of the Thomas Appointment to the Supreme CourtAuthor(s): Karen O'ConnorSource: PS: Political Science and Politics, Vol. 25, No. 3 (Sep., 1992), pp. 492-495Published by: American Political Science AssociationStable URL: http://www.jstor.org/stable/419440 .

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Politics, Values, and the Thomas Nomination

Black community, Thomas may iron- ically add to the further political iso- lation of Blacks and legitimate aban- doning governmental efforts to achieve his community's elusive dream of political equality.

Political scientists can learn from this episode something of the com- plex interweaving of race, class, and gender. Feminist organizations have often not been appropriate homes for Black feminists, partly because of implicit racism and partly because of the way such organizations have usually ignored the unique aspects of Black female experiences. The femi- nist movement has a large potential pool of support among Black women if White feminists were to realize how race interacts with gender to produce both different concerns among Black women and different understandings of common concerns. Responses to the Thomas-Hill con- troversy indicate that some issues will produce divergences between the perceptions and political stances of Black and White women, differences the feminist movement must under- stand and encompass.

Notes *The authors would like to acknowledge

the help of Kathleen Frankovic of the New

York Times; John Brennan of the Los Angeles Times; the Roper Center at the Uni- versity of Connecticut, which provided data from USA Today/Gordon Black, ABC News, Gallup and Yankelovich Clancy Shulman; and the Russell Sage Foundation and the Survey Research Center at the University of California at Berkeley, which supported our work. We thank Eileen McDonagh for comments on an earlier draft of this article. This article draws on a longer analysis by Katharine Tate in "Invisible Woman," The American Prospect (Winter 1992), pp. 74-81.

1. This section and Table 1 use surveys from Gallup 1986 (February 5-11, N = 1009, women only), Gallup 1987 (April 25-May 10, N - 4244), Yankelovich Clancy Shulman ("Yankelovich") 1989 (October 23-25, N = 1000, women only) and Princeton Survey Research Associates (PSR) 1990 (December 18-21, N = 1234). Princeton Survey Research Associates provided tabulated data for 1990; the other calculations are our own. A search of the Roper files 9/18/90 indicates that in that archive to that date these were the only questions ever asked to determine whether or not the respondent considered herself a "feminist." In all four surveys, the question was asked only of women, either because the survey was of women only (Gallup 1986; Yankelovich 1989), or because men were asked instead if they were "a supporter of the women's movement" (Gallup 1987; PSA 1990).

2. For example, in the PSR 1990 survey, 2507o of non-White men said the description "a supporter of the women's movement" was "perfect" for them, compared to only 12% of White men.

3. This section and Table 2 use surveys from USA Today (October 13, 1991, N = 758), the Los Angeles Times (October 12-13, N = 1264), ABC News (October 13-14, 1991, N = 1020), and the New York Times/CBS News (October 13-14, 1991, N = 998).

References Dawson, Michael C. 1992. Behind the Mule:

Race and Class in African American Poli- tics. Unpublished book manuscript, The University of Michigan.

hooks, bell. 1981. Ain't Ia Woman. Boston: South End Press.

"How Anita Hill's Allegations Came to Light." 1991. Time, October 21, p. 51.

Klein, Ethel. 1987. "The Diffusion of Con- sciousness in the United States and West- ern Europe." In The Women's Move- ments of the United States and Western Europe, ed. Mary Fainsod Katzenstein and Carol McClurg Mueller. Philadelphia: Temple University Press.

"Race, Gender and Liberal Fallacies." 1991. New York Times, October 20, section 4, p. 15.

Stanley, Alessandra. 1991. "Anita Hill Is Welcomed as a Heroine." New York Times, November 2.

Tate, Katherine. 1993. From Protest to Poli- tics: The New Black Voters in American Elections. Cambridge, MA: Harvard Uni- versity Press and the Russell Sage Foundation.

Williams, Lena. 1991. "The Thomas Nom- ination: Blacks Say the Blood Spilled in the Thomas Case Stains All." New York Times, October 14, p. 1.

About the Authors Jane Mansbridge, author of Why We Lost

the ERA, is the Jane Long Professor of the Arts and Sciences in the Department of Polit- ical Science at Northwestern University.

Katharine Tate, author of From Protest to Politics: The New Black Voters in American Elections, is Associate Professor of Govern- ment at Harvard University.

The Effects of the Thomas Appointment to the Supreme Court

Karen O'Connor, Emory University

In announcing his nomination of Clarence Thomas to the United States Supreme Court on July 2, 1991, George Bush described him as "a fiercely independent thinker with an excellent legal mind," and pro- claimed his belief that Thomas would "be a great Justice." While many legal and political commentators had predicted that Clarence Thomas stood an excellent chance of being Bush's nominee to replace the retir- ing Thurgood Marshall, few were

quick to echo Bush's assessment that Thomas was:

. . the best qualified at this time. ... Clarence Thomas ... fits my descrip- tion of the best man at the right time.

. I kept my word to the American people and to the Senate by picking the best man for the job on the merits. (New York Times, 2 July 1991)

Even as Bush offered Thomas's name in nomination, the skeptics were muttering about the hyperbole

that surrounded the announcement. Thomas's total lack of courtroom experience and his generally undis- tinguished record as a jurist led many to question his qualifications to serve on the High Court. Concern with his general absence of legal credentials prompted the American Bar Associa- tion's Standing Committee on the Federal Judiciary to rate Thomas merely as "Qualified"--making him the only nominee with such a low rating to serve on the Supreme

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The Effects of the Thomas Appointment

Court. The authority and prestige of the

United States Supreme Court have always rested on its support from the other branches of government and, perhaps even more importantly, on the support of the American public. The controversy over the Thomas nomination focused unprecedented attention on the Supreme Court as an institution, as well as on the nominee himself.

Thomas's Impact on the Court's Decisional Output

Ironically, in stark contrast to later nominations, in 1986 there was little organized opposition to the nomina- tions of Antonin Scalia to the Supreme Court and William Rehn- quist to the position of Chief Justice. Yet, it was those nominations that truly began the Court's turn to the right. Although Chief Justice Rehn- quist was expected to play a far larger role in molding opinion on the Court than had his predecessor, Warren Burger, and Scalia's conser- vative views were well known (at least in legal circles), it was not until the nomination of Robert Bork that liberal interests effectively organized to stop his nomination. But, whether the ultimate appointment was Bork, Douglas Ginsburg, or Anthony Ken- nedy, Ronald Reagan had a clear mission: he was determined to appoint conservatives to the Court to turn the tide of two decades of lib- eral decisions.

That conservative tilt was clearly seen as early as 1989 in Webster v. Reproductive Health Services in which a majority of the Court for the first time upheld a series of restrictive abortion rules and regula- tions. More importantly, at least four members of the Court appeared will- ing to overrule Roe v. Wade (1973). Justice Scalia, a forceful advocate of abandoning Roe, went so far as to chide Justice O'Connor, whose con- currence provided the crucial fifth vote in Webster, by noting that her indecision would only mean that the Court "could look forward to at least another term with carts full of mail from the public and streets full of demonstrations." Perhaps without even meaning to, Scalia was

acknowledging the increasingly polit- ical nature of the Court and the importance of future appointments, at least in terms of his ability to con- vince his Brethren to overturn Roe.

During its next two terms, bol- stered by the addition of David Souter in its 1990 term, the Rehn- quist Court further evidenced its increasingly conservative nature as it handed down a series of cases includ- ing ones that overturned earlier precedents involving employment dis- crimination, limited habeas corpus review, prohibited workers at public- ly funded abortion clinics from coun- seling pregnant women on abortion alternatives, allowed the use of coerced confessions at trial, and that upheld a state's ban on nude dancing at adults-only clubs finding no First Amendment violation. Many of these conservative opinions were closely divided 5-to-4 decisions. And, other liberal decisions like United Auto Workers v. Johnson Controls, which held that companies cannot exclude women from jobs that might harm a developing fetus, were also 5-to-4 decisions. But, over the course of the two terms, the conservatives ap- peared increasingly able to muster a majority. While in 1989 one-third of the Court's decisions were 5-to-4 rul- infgs, in 1990 only one-fifth were so narrowly decided, and many more were 6-to-3 decisions (Congressional Quarterly 1992).

In spite of the fact that the "Reagan Revolution" was already alive and well on the Court, most initial comment about Clarence Thomas's nomination stemmed from concern over his positions on abor- tion, civil rights, and more specifical- ly, affirmative action, especially since he was to replace the Court's staunchest advocate of those prin- ciples, Thurgood Marshall. The pres- ence of a black man on the Court opposed to the goals of the civil rights movement was especially troubling to many.

During the first set of hearings on the nomination of Clarence Thomas, it was those issues and his apparent advocacy of "natural law" and its possible decisional implications that concerned the senators on the Judi- ciary Committee and others. In a series of writings and public speeches, Clarence Thomas had

noted his approval of the concept of "the natural law"-a belief that cer- tain principles are higher or take precedence over principles fully artic- ulated in the Constitution.

Thomas's fairly extensive writings on a variety of issues of concern to conservatives, especially his views on the natural law, affirmative action, and property rights (as deserving of special protections), are probably more interesting from the question of why he felt compelled to write on those issues than their ultimate effect on his vote.

Little in Justice Thomas's back- ground indicates that he had any particular scholarly or intellectual abilities or interests. Yet, once he positioned himself as an "up and coming" black conservative, he began to put his thoughts on weighty issues into written commentary, which often found their way into conservative magazines and journals giving him even greater visibility and approval in the conservative com- munity. His concern with the natural law, a subject that few lawyers with the exception of law professors appear to pay much attention to, was his personal attempt to appear more scholarly than he feared he was.

For whatever reason Thomas chose to engage in this sort of legal dis- course, Democrats on the Judiciary Committee were unable to pin Thomas down on those ideas and how they would influence his per- formance on the bench. He insisted that "At no time did I feel that natural law is anything more than the background to the Constitution" and that it was but "a political theory" rather than a theory of judicial decision-making. Yet, when Committee Chair Joseph A. Biden queried:

S. . Didn't (Justice Antonin) Scalia do just what you said? Scalia applied "natural rights" in casting the lone dissenting vote in a case before the Supreme Court. You said that is what he did and you recommend to every- one else, "Look at what he did, it is a good thing."

Thomas responded:

I have attempted..,. to make clear that I don't think . .. a direct appeal to natural law is part of adjudicating

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Politics, Values, and the Thomas Nomination

cases. Now the point I was attempting to make here . .. is simply (Scalia) indicates how, again, we might relate natural rights to democratic self- government.

Concern was also evident over Thomas's views on abortion, and he was questioned extensively on his views on privacy. Following the suc- cessful strategy that the White House had used with David Souter, Thomas declined to give his views on abor- tion, although his vote was viewed by many as the likely key vote to overrule Roe v. Wade. So artfully did Thomas dodge his position on abortion that Robert Bork later was to remark, "The only two adults in America who haven't expressed any views on Roe v. Wade are now sit- ting on the Supreme Court."

The members of the Committee also were frustrated by their inability to get Thomas to articulate his views on a variety of other areas, and many voiced concern that he ap- peared to be backing away from positions he had adamantly advo- cated while a member of the Reagan administration and as head of the Equal Employment Opportunity Commission, especially in regard to race and gender-based affirmative action policies. Nevertheless, Thomas's prior writings, comments, and actions while head of the EEOC and his decisions on the Court of Appeals led liberals to bemoan his selection and its ramifications on the Court and conservatives to applaud it.

Were They Right? Since he joined the Court,

Clarence Thomas has closely allied himself with Antonin Scalia who, prior to the appointment of Thomas, was considered the Court's most con- servative member. Thomas even hired one of Scalia's former clerks (as one of his four white male clerks). He even has had to face charges that the clerk has unduly influenced him since Thomas so often relies heavily on prior opinions of Justice Scalia to justify his own legal views, even in situations where the Court has specifically rejected those views. It appears that Scalia and Thomas have formed a new,

more conservative bloc on the Court to the right of the one formerly occupied by Rehnquist and Burger. For example, in Hudson v. Mc- Millian (1992), a 7-to-2 decision, Scalia and Thomas disagreed with the idea that the Eighth Amend- ment's protection against cruel and unusual punishment even applies to prison conditions. In their dissent, they rejected the majority's finding that it was "cruel and unusual punishment" for prison guards to kick and repeatedly beat a hand- cuffed and shackled prisoner under the watchful eye of a prison super- visor who warned the guards "not to have too much fun."

In allying himself with Scalia and what some Court watchers call his "aggressive conservativeness," Thomas has delighted those who fought for his nomination. Justice Thomas is meeting his critics head on and at the same time further enhanc- ing his conservative credentials and even convincing some of his skeptics about his legal abilities (O'Brien 1992). "The early returns look very good," commented Paul Kammenar of the conservative Washington Legal Foundation. "He is obviously pairing up with Scalia on most of these cases, and I think he's showing that . . . he is the kind of jurist that would make those who supported him very pleased" (Marcus 1992, A-6).

Most commentators agree that Thomas's dissent in McMillian, which included a sharp rebuke of the majority and a statement of Thomas's belief that the Constitution cannot be used to "address all ills in our society," has implications beyond the immediate case. Accord- ing to Thomas Jipping of the conser- vative Free Congress Foundation, it "reflects the kind of restrained judi- cial philosophy that he has and he is exemplifying that consistently and clearly in his opinions" (Marcus 1982, A-6).

These views can be seen in some other Thomas decisions:

* In Lamprecht v. FCC, an opin- ion he wrote while a U.S. Circuit Court Judge, but which was not released until February 19, 1992, Thomas overturned a federal affirm- ative action policy that required special preference be given to women

in the awarding of radio and tele- vision broadcast licenses.

* In Haitian Refugee Center v. James Baker, III, although he voiced his concerns about allegations of mis- treatment against those forcibly returned to Haiti, he made it clear that those concerns were only per- sonal when he voted not to hear a case involving the forcible repatria- tion of Haitians who fled the island after the September 30 coup, because the "matter must be addressed by the political branches" of government.

* In Franklin v. Gwinnett County School Board Thomas agreed with the bottom line of the Court's deci- sion that allowed a victim of sex dis- crimination at a school receiving federal funds to sue for money damages, but he did so on a nar- rower basis than the six-member majority. He even suggested that the Court had been wrong in a 1979 case where it had held that private parties could sue under federal statute.

* In Presley v. Etowah County Commission, his first vote in a civil rights case, Thomas joined with the majority to reject an administration- advocated, broad interpretation of the Voting Rights Act. It was the first time the Supreme Court had adopted a narrow interpretation of the 1965 law. The three dissenters predicted that the decision would allow jurisdictions with a history of voting discrimination to evade the requirements of the act.

* In Lechmere v. National Labor Relations Board, in his first signifi- cant majority opinion, Thomas rejected the administration's view that union organizers had a right to enter an employer's property to recruit members. In writings prior to his appointment to the bench, Thomas had written on the impor- tance of property rights and those views were reflected in his opinion, which emphasized the significance of the trespass involved on private prop- erty. In this case, the "private prop- erty" was a parking lot open to the public where union members had placed leaflets on employee's cars.

* In Wyoming v. Oklahoma Thomas reiterated his view of the limited role of the Court in society in concluding that the Court was "mis- guided" in its decision to hear a dis-

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The Effects of the Thomas Appointment

pute between the two states over revenue from a coal tax.

* In White v. Illinois Thomas con- curred with Scalia to argue that the constitutional guarantee that criminal defendants have to confront their accusers in court did not apply to hearsay testimony.

Perhaps even in response to criti- cisms that he was becoming "Son of Scalia," in Jacobson v. United States Thomas confounded his critics when he provided the key fifth vote to set limits on government "sting" opera- tions in a surprise ruling that favored a Nebraska farmer who argued that he had been lured into buying child pornography by years of government efforts to entrap him. Decisions like this departing from the conservative majority, however, are likely to be few and far between. Clarence Thomas has clearly cast his lot with Justice Scalia, and this tendency is likely to be evident in the decisions dealing with criminal rights, abor- tion, property rights, and the separa- tion of church and state that the Court should decide by the end of its 1991 term. And, if his past and early indications of his voting continue to be consistent, the Court's move to the right begun during the Reagan years, will become a second "Consti- tutional Revolution" of the scope of the one that took place in 1937.

The Impact of the Thomas Appointment on the Court as an Institution

While the addition of Clarence Thomas solidified a conservative majority already in place, it did little other than to hasten the pace of con- servative decisions from the Court. In contrast, the hearings process and Clarence Thomas's conduct during them and even shortly after had a more lasting impact on the Court as an institution.

During the first phase of the Thomas hearings, many were left wondering about the nominee's veracity. After all, how many Ameri- cans had not really thought about or grappled with the issue of abortion? Yet, Thomas claimed he had not. The second round of the hearings-- as the Senate Judiciary Committee attempted to investigate sexual

harassment charges-were unprece- dented in American history. As many in the nation sat transfixed, they pondered the specter of a sitting jus- tice who might have violated the law. Yet, public opinion polls taken around the time of the hearings indi- cated that Americans overwhelmingly approved of the nominee and thought he was suited for the Court.

As of this writing, however, no polls measuring any changes in the Court's prestige in the eyes of the public have been reported. The atti- tudes of members of the judiciary, however, appear to have been affected. In a random poll of 100 federal and state judges taken by the National Law Journal the day after the Senate voted 52 to 48 to confirm Judge Thomas, researchers found that 48 would not want to be nom- inated to the High Court and that 41 favored Professor Hill's testimony with only 22 being more inclined to believe Judge Thomas. Perhaps most importantly, 72% of the judges polled believed that the credibility of Judge Thomas was damaged by the confirmation process and one-third believed that the process damaged the Supreme Court as an institution (National Law Journal 1991).

Members of the legal community and academics are key opinion mak- ers about the Supreme Court. Says Dean James F. Simon of the New York Law School, members of the legal community "are going to approach [Thomas] with a good deal of skepticism if not cynicism, in the short term" (National Law Journal 1991). Given that the Supreme Court so heavily depends on the prestige of its members to afford the institution its place in our American system of government, it will be interesting to see if attitudes of the legal elite begin to affect the public's perception of the Court in general and Justice Thomas in particular.

Certainly some reporters have come out strongly against Thomas. In a stinging attack on Justice Thomas, Washington Post reporter Richard Cohen publicly ridiculed Thomas's appearance on the cover of People magazine and his apparent glaring lack of sense of the appro- priate (Cohen 1991, A-21). Cohen seemed particularly outraged by statements of the Justice's wife con-

cerning her belief that "he [Thomas] doesn't owe any of the groups who opposed him anything (in court)." Cohen and others also have specu- lated on how all of this was per- ceived by the justices, especially since many were already miffed at Thomas's insistence that he be sworn in by Chief Justice Rehnquist the day after Rehnquist's wife was buried- and a week earlier than he had been scheduled to take the judicial oath.

The Court has long operated with a strong sense of agreement about the norms of proper behavior and with an aura of mystery. The public attention given to the hearings not only convinced the justices that the broadcasting of their proceedings would damage the Court's reputation (Mauro 1992), but put the Court and its members in a spotlight that most of the bench take efforts to avoid. The People magazine piece, accord- ing to Court insiders, was greeted with abject horror in the chambers of many of the justices and it brought the Court down to a dif- ferent level as did the charges against Thomas.

References Cohen, Richard. 1991. "What's Clarence

Thomas Doing in People Magazine?" Washington Post, 12 November.

CQ Guide to Current American Government. 1991. Washington, DC: Congressional Quarterly, Inc.

"Hearings Turn Off Judges." 1991. The National Law Journal, 28 October, p. 1.

Marcus, Ruth. 1992. "Early Returns Show Justice Thomas as Advertised: Conserva- tive." The Washington Post, 1 March.

Mauro, Tony. 1992. "Starry Indecisis: Law's Brightest Lights Don't Always Shine under the Glare of Public Scrutiny." The Recorder, 7 January.

New York Times. July 2, 1991. LEXIS. O'Brien, David M. 1992. "Holding the

Center: As Thomas and Scalia Stake Out the Far Right, O'Connor Takes the Moral High Ground." Los Angeles Times, 8 March.

About the Author Karen O'Connor is a professor of political

science at Emory University and a member of the Georgia Bar. She is the coauthor (with Larry Sabato) of American Government: Roots and Reform, Macmillan Publishing Co., forthcoming 1993.

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