Posted on 06/28/2003 3:11:38 PM PDT by Mr. Mulliner
June 27, 2003 / 12:48 PM ET
JUDGING CLARENCE THOMAS
Hello! I’m Eugene Volokh; I teach law at UCLA School of Law, and I blog at The Volokh Conspiracy, together with a bunch of my other friends (most of whom are also law professors). Many thanks to Glenn Reynolds for letting me guest-blog today and for a couple of days next week.
Lots of people have criticized Justice Clarence Thomas’ anti-race-preferences opinion (from Monday’s Grutter v. Bollinger decision concerning the University of Michigan Law School’s admissions policy), on the grounds that there’s reason to think that he has benefited from some such preferences. Maureen Dowd in The New York Times has a particularly intemperate expression of this view: “It’s impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude.”
The most basic objection to this view, I think, is that if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. “Gratitude” isn’t a proper basis for constitutional decisionmaking.
But beyond this, I wonder how far these critics would take their criticism. In the 1970s, the Supreme Court held that sex discrimination was unconstitutional. The justices who voted for this position had spent their lives in a nation in which women were largely excluded from the legal profession. Those men may well have benefited from this exclusion — when half the population is out of the competition, the competition is easier. Maybe if men hadn’t gotten preferences, some of those justices wouldn’t have made it onto the high court.
Should Justices Brennan, Marshall, and the others have said “Oh, we benefited from sex discrimination, so it would be ungrateful for us to now hold that sex discrimination is unconstitutional”? Or should they have resigned en masse, in shame at having gotten this benefit that they realized was improper? Should people have berated them for having gotten the advantage of preferences for males, and then denying future generations of men the same advantage (“pull[ing] up the ladder after [themselves]”)?
Likewise, until the early 1960s, many states set up legislative districts in a way that favored less populated rural areas over more populated urban ones. Many legislators’ careers benefited from this sort of affirmative action for rural places. Some of them likely became judges. Was it then wrong for these judges and legislators to promote a “one-man, one-vote” policy in which all districts had equal population? After all, they were doing away with a policy that had helped them, and that could have helped future rural politicians and rural voters (of course, by hurting urban politicians and urban voters).
Or how about a hypothetical future scenario: Today the Senate is an affirmative-action program for small states; Vermont gets as many senators as California. If some small-state senators decide this is wrong, and try to change it (very hard to do, but theoretically possible), would Thomas’ critics damn them as disgusting ingrates?
I’ll bet that most of Thomas’ critics (the ones that make the criticism with which I started this post) don’t think there’s anything remotely wrong with people trying to overturn these unfair advantages, even when they themselves had benefited from them. In fact, many would think such actions are especially worthy, because the judge or legislator would be voting out of principle, and against policies that might unfairly benefit people with whom he’d feel close (fellow males, rural voters, or small-state residents).
So Thomas’ critics aren’t really faulting him for opposing policies from which he himself benefited. They’re really faulting him for opposing policies that they like. But instead of acknowledging that they simply disagree with Justice Thomas on the substance, they engage in personal attacks — saying that his actions aren’t simply mistaken as a matter of constitutional law (a matter on which reasonable minds may differ), but “disgust[ing]” because of his personal history.
And the saddest thing is the racial double standard that this produces. When white Justice Scalia opposes race preferences, people at least debate him on the merits. But let black Justice Thomas do it, and he gets vitriolically and personally attacked. Not fair, not egalitarian, and not good for constructive, thoughtful dialogue about race.
I do not know whether Justice Thomas benefitted from affirmative action in his youth or not. What is interesting is that his critics assume that he did. This is a great argument against AA. Minorities are always assumed to not have made it on their own but only from AA. Just proves the point that AA is bad on the merits. It is also bad on the constitutional issued-simply a violation of equal protection.
Miss Dowd is a hypocrit in this matter.
Miss Dowd and most other leftist commentators are hypocrits in every matter... from Affirmative Action to Zoology. The way they get away with it is by not stating allegiance to any specific ideological principle. Are they Communists? Hell, most leftists won't even admit to that and couldn't list its fundamental concepts, just as they cannot tell you what the fundamental concepts of Capitalism are... as they damn it. Integrity is a relative aspect of the moment. What's 'right' (to Dowd) evades qualification. What's 'right' is what feels right in a particular situation. History, precedent, outcome, reality are irrelevant. Intentions are the codex of the left and the guiding principle... just as they were taught. To call Dowd, Krugman and others stupid would be too kind. To call her a hypocrit is patent. She is a cockroach relative to the stature of statesman like Justices Thomas and Scalia. History will remember them as such. Likewise it will remember the poison of legal subjectivity introduced by Justices Kennedy and O'Connor.
Maureen Dowd will be afforded the relevance of discarded toenail clippings.
Bravo Mr. Volokh! I think its safe to say to Miss Dowd and her compatriates... "The Gigs Up! You've been discarded."
Not "produces," reflects."Our betters" busy at work showing us how to be fair and open-minded . . .
Maybe not for much longer. David Broder has a column in today's Washington Post, The Scalia Model , that is much more personal than on the merits. The column also curiously omits any mention of Clarence Thomas.
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