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Jeffrey Toobin's The Nine and Justice Thomas:

I blogged below about some factual errors in The Nine that worried me. But I was also troubled by a couple of other things; they are judgment calls, and perhaps you might agree with the author's judgment more than mine, but I thought I'd mention them.

In particular, let me start with the book's treatment of Justice Thomas, which at times strikes me as not entirely fair. Let me offer a few example:

1. On pp. 109-10, the book discusses Justice Thomas's speech in which he asserts "my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black." Justice Thomas, the book argues, "chose to attack straw men. No one quarreled with Thomas's right to his own views; no one said black people had to speak with one voice; no one asserted that support for causes like affirmative action was obligatory for Thomas or anyone else .... It was the substance of Thomas's views, not his right to hold them, that his critics attacked."

Is that really right? Unless I'm mistaken, Justice Thomas has quite often been faulted for his positions not just substantively, but by being damned as a traitor to his race, Uncle Tom, house Negro, and the like — statements that do suggest that he should have had certain ideas precisely because he's black, and that black leaders did indeed have to speak with one voice on those issues. As leading liberal black professor Randall Kennedy put it (describing the phenomenon, not endorsing it), "[a]mong professional blacks, especially lawyers, he is widely ostracized and routinely vilified as an 'Uncle Tom.'" Former Surgeon General Joycelyn Elders publicly called Thomas an "Uncle Tom" (see Wash. Post, May 2, 1995); the Rev. Joseph Lowery publicly said (see Atlanta Journal & Constitution, June 4, 1996) that Thomas "has become to many in the African-American community what Benedict Arnold was to the United States, a deserter; what Judas was to Jesus, a traitor, and what Brutus was to Caesar, an assassin." Is Justice Thomas really attacking straw men when he responds to this the way he did? Is it really the case that "no one [has] asserted that support for causes like affirmative action was obligatory for Thomas" and other blacks like him?

2. Likewise, on p. 112, the author dismisses Julianne Malveaux — who said in a cable interview that "I hope his wife feeds him lots of eggs and butter and he dies early like a lot of black men do" — as "an obscure columnist." Her columns have appeared roughly once a month in USA Today, one of the highest-circulation newspapers in the country.

3. On p. 111, the book describes how Thomas received a $1.5 million book advance for his memoirs from Rupert Murdoch, and adds in a parenthetical, "More than three years after the contract was announced, and $500,000 paid to him, Thomas had still not delivered a manuscript." If that's just faulting Justice Thomas for being a slow writer, that's fine, though I expect that three years isn't that long a time for writing a manuscript. But if the claim is that he's somehow taking money and delivering only vaporware — which I think is the impression the parenthetical leave — might it have been worth mentioning that the book is coming out just a few weeks after The Nine? The author might not have known this when he was writing the manuscript, but I'd think it could have been checked before The Nine went to press.

Steve:
Some of these excerpts make me not want to buy the book (although your #2 is a bit silly). It seems to me that Justice Thomas' judicial philosophy pretty much precludes giving him credit for "judicial attempts to help blacks," since presumably he would say he decides cases without regard to whether the result would help blacks or not. If you decide a case simply by following the law, but note parenthetically that the decision will be good for blacks, that's not an attempt to help blacks.

On the subject of gifts, I recall a crazy litigant who claimed he had once given Justice Thomas a set of boxing gloves autographed by Muhammad Ali. When I spoke to Justice Thomas about this (I did!), he said that he thought the clerks had tossed that gift down in the basement somewhere, where all the other gifts get stored. While personally I'd treat the Champ's memorabilia a bit better than that, he certainly didn't come across as the type of person who cared much about largesse. I'd be surprised to learn he's out there trolling for expensive gifts.
9.21.2007 7:08pm
byomtov (mail):
Justice Thomas has quite often been faulted for his positions not just substantively, but by being damned as a traitor to his race, Uncle Tom, house Negro, and the like — statements that do suggest that he should have had certain ideas precisely because he's black, and that black leaders did indeed have to speak with one voice on those issues

I think this criticism can be read two different ways.

Your interpretation is that it unfairly aims at Thomas' hionestly held positions because they are not in accord with views more popular with blacks.

Alternatively, it may express the idea that Thomas' views are not in fact honestly held, but were adopted to curry favor with conservatives and thus achieve advancement. Under this view these are not

statements that do suggest that he should have had certain ideas precisely because he's black,

but rather statements that suggest he abandoned certain ideas not out of conviction but out of political ambition, and turned on his own people for personal gain. Someone who thinks this is what Thomas did might well use the terms you quote.
9.21.2007 7:44pm
Nessuno:

Alternatively, it may express the idea that Thomas' views are not in fact honestly held, but were adopted to curry favor with conservatives and thus achieve advancement.


The problem with this explanation for those odious quotation is that the only proof available supporting the assertion that Thomas is trying to curry favor is . . . that he is black.

Another way to put it is that a man who spends his entire legal career as an open conservative is presumed to be disingenuous based solely on the evidence that he is black. Well, his skin tone is not evidence, as you might be aware, so the only logical extension of that reasoning (to the extent that logic is a factor at all) is that black people can't--they just can't-- be genuine conservatives on some other grounds. Those grounds might be the fact that you might think conservatism is so harmful to minorities that no sane individual could ascribe to it. Or the grounds might be some other similar line of reasoning.

But no matter how you rephrase it, it all boils down to the same thing. It's a bigotry that says that black legal professionals may only legitimately think one way.
9.21.2007 8:38pm
Stuart Buck (mail) (www):
Another great example for point 5 is Thomas's dissent in Kelo v. New London:
Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities," United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with disproportionate influence and power in the political process, including large corporations and development firms" to victimize the weak. Ante, at 11 (O'Connor, J., dissenting).

Those incentives have made the legacy of this Court's "public purpose" test an unhappy one. In the 1950's, no doubt emboldened in part by the expansive understanding of "public use" this Court adopted in Berman, cities "rushed to draw plans" for downtown development. B. Frieden &L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). "Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them." Id., at 28. Public works projects in the 1950's and 1960's destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely "lower-income and elderly" Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; "[i]n cities across the country, urban renewal came to be known as 'Negro removal.' " Pritchett, The "Public Menace" of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. &Pol'y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the "slum-clearance" project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court's decision will be to exacerbate these effects.
9.21.2007 9:39pm
Redlands (mail):
I've certainly read, and heard, worse said about Justice Thomas. I'm hoping to live long enough to read a truly objective analysis of his tenure with the big court. So far, the screeching seems to boil down to the fact that he doesn't render blind obedience to the party racial line.
9.21.2007 11:15pm
Eli Rabett (www):
Sounds to me like a high tech lynching. Thomas waving the bloody flag or someone doing it on his behalf is not to be taken seriously
9.22.2007 1:21am
aeroman (mail) (www):
I think you're underselling number 6. Unlike the others, that doesn't seem like a judgment call -- it seems much more like a flat-out incorrect reading. Maybe the "all" was just sloppiness. Hey, sloppiness happens. But unlike the other instances you point out in this post, that one seems to really legitimately require a correction in any future editions.
9.22.2007 2:00am
Groucho Marxism:
Doesn't sound incorrect so much as Toobin seems to be bringing the media/popular (?) consensus that "personal right" implies "no gun control." Besides, gun control is surely more restrictive than EV's mention of obscenity laws and such (we don't have a "Bureau of Speech and the Press," there aren't laws banning specific words), so describing gun possession as a "personal right" like speech is a "personal right" seems a bit faulty.
9.22.2007 2:18am
David M. Nieporent (www):
Alternatively, it may express the idea that Thomas' views are not in fact honestly held, but were adopted to curry favor with conservatives and thus achieve advancement.

The problem with this explanation for those odious quotation is that the only proof available supporting the assertion that Thomas is trying to curry favor is . . . that he is black.
The other problem with it is that Clarence Thomas is on the Supreme Court. What "advancement" does he need to "achieve"? Is there a super-duper Supreme Court? (That's the one that creates Specter's super-duper precedents, I guess.)
9.22.2007 2:22am
Stevethepatentguy (mail) (www):
<blockquote>
statements that suggest he abandoned certain ideas not out of conviction but out of political ambition, and turned on his own people for personal gain
</blockquote>


I'm confused as to what additional "political ambition" or need for "personal gain" remains for a Supreme Court Justice. It seems to me that you can regain any "certain ideas" that may have been abandoned once you reach the pinnacle of your career.

A true political opportunist would cover his tracks throughout his career and then reveal his ideology once he is being fitted for new robes. Scalia, Ginsberg and Thomas don't fit this pattern, they came into the job with a well defined ideology and remained consistent. Souter is my counter example. Thomas seems immune from the Greenhouse effect.
9.22.2007 9:04am
Guest231:
Stevethepatentguy, how is Souter a counter-example to that given he is exactly the justice he was when he was a state court judge and exactly the judge he said he would be during his confirmation hearings. Just because you didn't know what kind of justice he would be doesn't mean he "changed" ideology.
9.22.2007 11:13am
James Lindgren (mail):
Most of Eugene's criticisms are pretty telling.

As I have posted on VC, in the US just as many African Americans identify as conservative as liberal. What is unusual about Justice Thomas is that he is a black Republican, of which there are relatively few.

I have no doubt that Thomas is attacked more viciously than Scalia because of race.

I find both Thomas's votes and his opinions uneven. Some of his opinions (such as his Kelo dissent) are among the best that that Court has produced in the last few decades. Some are pedestrian and poorly reasoned.

It's strange that Thomas is not viewed as an independent thinker when he expresses a more coherent (though not necessarily correct) judicial philosophy than perhaps any other justice. Although he is inconsistent, Thomas takes issues of originalism and liberty more seriously than any other current justice, including Scalia. In that sense, he provides intellectual diversity to the Court.

And it was a bit disingenuous of the press to slam Thomas for rarely asking questions during argument when Justice Brennan didn't either. I think most of this Court are reasonably good justices (my favorite is Stevens), but I find myself agreeing with the conservative side as often as I do with the liberal side of this Court. Just from his opinions, I rate Thomas above average among current justices.

Jim Lindgren
9.22.2007 12:23pm
Zacharias (mail):
At Holy Cross College, Thomas graduated ninth in his class with an A.B. in English, cum laude in 1971. He was a member of Alpha Sigma Nu and the Purple Key Society. At Yale Law School, he received his J.D. in 1974.

Like the other Supremes, Thomas has not distinguished himself in math or science, and, in spite of his cum laude English, he manages to abuse the subjunctive mood in a contrary-to-fact construction when he asserts (as quoted in the original post),

"my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black."
9.22.2007 1:56pm
Elliot123 (mail):
Too many people think the "black seat" on the court has less freedom of thought and expression than the other seats.
9.22.2007 2:19pm
Christopher Cooke (mail):
Toobin is perhaps guilty of an over-sweeping generalizations ("no one . . "), but it is hard to know if Thomas is more frequently criticized for not adhering to the "party line" (Eugene's view, possibly) or for the substance of his views (Toobin's view), unless you do some sort of tally of all criticism of Thomas, and sort them by type. Without such a tally, it seems to me that these sorts of posts just reflection the biases of the blogger. Eugene, who is conservative, sees the "party line" type of criticisms of Thomas as "frequent" while Toobin, who is liberal, sees them as infrequent.
9.22.2007 5:02pm
JM Hanes (mail):
Christopher Cooke:

On "Eugene's view" vs. "Toobin's view," it's not simply a matter of who might be more inclined to notice such attacks. Toobin has actively dismissed the idea of such "strawmen" as, one must presume, evidence of distortion in Thomas psyche or intellect. Certainly conservatives might be more inclined to speak out on the subject of such racially based attacks on minority conservatives, as in this extended excerpt from FrontPage Magazine, which supplies both examples of such attacks and context for the Thomas quote:

This type of racial name-calling is nothing new for the political Left, whose members commonly dismiss as an "inauthentic black" any African American whose world-view differs from their own. The planted axiom is that "all real blacks think alike" on matters of race, a preposterous notion that civil rights activists would rightfully condemn if it were uttered by a white person. Some of the rhetoric has been ugly indeed.

Consider Jesse Jackson, whose denunciations of Mr. Connerly's opposition to affirmative action degenerated into his calling Connerly a "house slave" and a "puppet of the white man." A few years ago Jackson also condemned Supreme Court Justice Clarence Thomas's vote to place limits on affirmative action programs, characterizing Thomas's vote as "a brutally violent act" that, "in effect, stabbed Dr. King, . . . paving the way back toward slavery." Along with fellow activist Al Sharpton, Jackson led a prayer vigil outside Thomas's home to protest the Justice's decision. Likening Thomas to a Klansman, Jackson asserted, "At night, the enemies of civil rights strike in white sheets, burning crosses. . . . By day, they strike in black robes."

Ever since his appointment to the Supreme Court, Justice Thomas has been one of the Left's most detested targets. The late columnist Carl Rowan sarcastically suggested that "if you give Thomas a little flour on his face, you'd think you had [former Klansman] David Duke." San Francisco mayor Willie Brown called Thomas not only "a shill for the most insidious form of racism, but also a man whose views are "legitimizing of the Ku Klux Klan." Brown added that Thomas "should be reduced to talking only to white conservatives," and "must be shut out" by the black community."

The ugliness goes on and on. Political scientist Manning Marable asserts that Thomas has "ethnically ceased being an African American." Movie director Spike Lee calls Thomas "a handkerchief-head, chicken-and-biscuit-eating Uncle Tom." Author June Jordan characterizes him as a "virulent Oreo phenomenon," a "punk-ass," and an "Uncle Tom calamity." The late Haywood Burns, who was the dean of a New York law school and chairman emeritus of the National Conference of Black Lawyers, called Thomas a "counterfeit hero" whose ideals had "crushed or forever deferred" the dreams of millions of blacks. Columnist Julianne Malveaux told a television audience, "I hope [Thomas's] wife feeds him lots of eggs and butter, and he dies early, like many black men do, of heart disease. . . .He's an absolutely reprehensible person." Imagine the public outcry we would have heard if white speakers had uttered such mean-spirited nonsense.

From the podium of a recent NAACP convention, Thomas was denounced as a "pimp" and a "traitor" to the black community. With comparable contempt, the Reverend Joseph Lowery of the Southern Christian Leadership Conference once said, "I have told [Thomas] I am ashamed of him, because he is becoming to the black community what Benedict Arnold was to the nation he deserted; and what Judas Iscariot was to Jesus: a traitor; and what Brutus was to Caesar: an assassin. Missouri Democrat William Clay labels Thomas and other black conservatives "Negro wanderers" whose goal is to "maim and kill other blacks for the gratification and entertainment of ultraconservative white racists." Similarly, Mr. Clay described black conservative Gary Franks - when Franks was a Connecticut congressman - as a "Negro Dr. Kevorkian, a pariah," who exhibited a "foot-shuffling, head-scratching brand of Uncle Tomism."

Former NAACP executive director Benjamin Hooks denounces black conservatives as "a new breed of Uncle Tom [and] some of the biggest liars the world ever saw." Afrocentric historian John Henrik Clarke calls them "frustrated slaves crawling back to the plantation." The late Khalid Abdul Muhammad put it still more bluntly: "When white folks can't defeat you, they'll always find some Negro, some boot-licking, butt-licking, bamboozled, half-baked, half-fried, sissified, punkified, pasteurized, homogenized Nigger that they can trot out in front of you." It is notable that Muhammad's words - though very crude - express precisely the same message that Mr. Bond expressed somewhat more delicately.

Perhaps the most effective response to these many inanities comes from, of all people, Clarence Thomas. "Long gone is the time," he says, "when we [blacks] opposed the notion that we all looked alike and talked alike. [But] somehow we have come to exalt the new black stereotype above all and demand conformity to that norm. . . . [However], I assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black."
The question of whether such attacks preponderate in the criticism of Thomas is beside the point. Contra Toobin, they were certainly common enough, and notable enough, to justify Justice Thomas' remark.
9.22.2007 6:35pm
Elliot123 (mail):
I think Sec of State Rice, Clarence Thomas, Barak Obama, Collin Powell, and Ward Connerly are all either inauthentic blacks or not black enough.

Meanwhile, I have to note the attempts the NYT and some civl rights activists made to recruit Tiger Woods as a black. Woods simply says no; he's half Thai, one quarter American Indian, and one quarter black.
9.22.2007 6:54pm
J.Maestro (www):
Back in the 1990s retired Thirsd Circuit Judge Leon Higginbotham came to my law school to speak. Thomas was on SCOTUS by that time and still radioactive -- great fodder for those on the chat circuit. Part of Higginbotham's schtick was not merely to assail Justice Thomas for his judgment, but also to offer up psychological theories as to why he had "strayed" so far.

Higginbotham "suggested" (and I'm understating this) that Thomas was a self-hating black.

That's a close paraphrase, and I'm certain of the thrust of his remarks -- I recall being appalled not only at his blatant stereotyping, but also at the enthusiastic applause of the law school community that had turned out to listen.

The attitude that filled that auditorium was no strawman: it was real, it was outrageous, and it deserved the devastating critique that Thomas issued against it. Toobin's effort to airbrush history doesn't work on people who were there.
9.22.2007 10:29pm
Realist Liberal:

And it was a bit disingenuous of the press to slam Thomas for rarely asking questions during argument when Justice Brennan didn't either.


I know this is a complete side note but Thomas has actually addressed this a few times. He feels that it is rude to not allow the lawyer to make the presentation he has prepared. I don't remember exactly where I read that but he said that lawyers spend so much time preparing to present their argument that they should be allowed to make it without interuptions. That is why he doesn't ask questions.

Also, to continue the side note, unless it was a civil rights or criminal case, Justice Marshall never asked any questions either.
9.22.2007 11:27pm
andy (mail) (www):
Toobin's book is good in that it collects quite a lot of interesting information. it is bad in that he occasionally editorializes so as to make his hatred for conservatives completely clear.

i suggest buying the book used, so that you can get access to the info but without monetarily supporting the author.
9.23.2007 6:41am
David Muellenhoff (mail):
On NPR's Fresh Air this week, when asked about Thomas, Toobin cited a statement by Scalia to the effect that the difference between them was that Scalia is a conservative but he's not a nut. Presumably that's in the book somewhere....
9.23.2007 3:19pm
byomtov (mail):
Nessuno and David N.,

No doubt the interpretation I suggest implies that Thomas took this road when he was young, perhaps as a law student.

In any case, was just trying to point out that EV may be misinterpreting the criticism. It is not that he is obligated, as a black man, to hold certain views, but rather that he made a cynical decision to adopt conservative views for career purposes (many years before he was named to the Supreme Court).

Even though I'm no admirer of Thomas, I'm not going to believe he did this without pretty strong evidence, which I don't see. None of us lives inside Thomas' head, after all.

Still, let's bear in mind that people change their political views for personal advantage all the time. Just look at the presidential campaigns. So it's not crazy to think someone might do this.
9.23.2007 5:52pm
Karl (mail):
Exh. A:

"my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black."

Exh. B:

"On p. 111, the book describes how Thomas received a $1.5 million book advance for his memoirs from Rupert Murdoch, and adds in a parenthetical, "More than three years after the contract was announced, and $500,000 paid to him, Thomas had still not delivered a manuscript."

Answer:

Consider that Thomas is a control freak, well, relative to Washington standards, and want to write his own book, not a ghost written or "heavily edited" book like the Clintons and just about every one else.

I do recall some said Nixon actually wrote his own books.
9.23.2007 7:49pm
Joe Bingham (mail):
This guy must've been too busy researching his book to read a newspaper in the last decade. My God.
9.24.2007 2:46pm
Chester White (mail):

Clarence Thomas is one of the bravest men in America.
9.26.2007 7:24am