THE REAL CLARENCE THOMAS: CONFIRMATION VERACITY MEETS PERFORMANCE REALITY by Christopher E. Smith and Joyce A. Baugh. New York: Peter Lang Publishing, 2000. 235 pp. Paper $29.95. ISBN 0-8204-5006-5.

Reviewed by Tinsley E. Yarbrough, Department of Political Science, East Carolina University. Yarbrought@mail.ecu.edu

Clarence Thomas seemed an ideal Supreme Court choice for a conservative Republican president bent on replacing Thurgood Marshall with another African American justice. Not only did the two share the same race, but also the humble Pin Point, Georgia, roots Thomas had overcome obviously posed greater obstacles than anything Marshall's urban black middle-class background obliged him to confront. Even more important, Thomas was part of the tiny pool of politically conservative blacks acceptable to the GOP's core constituency. Although an obvious beneficiary of the civil rights movement and affirmative action, he had vehemently attacked the movement, its leaders, and the legislation it spawned. Affirmative action and social welfare programs, he charged, had created a narcotic of dependency among minorities and women, including his sister, who, though gainfully employed most of her life, had sought public assistance when she quit work to care for their elderly aunt. Her lapse did not escape her brother's contempt. She complained, he informed a conservative black audience, when her "welfare check" was late.

Thomas's pre-Court record matched his rhetoric. As head of the Equal Employment opportunity Commission (EEOC) in the Reagan and Bush administrations, he had eliminated use of minority hiring goals and employer timetables as devices for correcting workplace disparities. He also largely abandoned class action lawsuits against offending companies in favor of much less effective action in behalf of individual victims of employment discrimination. At the end of his tenure, he conceded that the EEOC had permitted over 900 age discrimination cases to lapse. His critics set the actual figure at ten times that number.

Professor Anita Hill briefly threatened to derail Thomas's confirmation with her allegations that the nominee had repeatedly subjected her to graphic, grossly offensive sexual remarks and detailed descriptions of pornographic movies during her years as his counsel at the Department of Education and EEOC. With coaching from Bush administration officials, however, Thomas quickly put Hill and Senate Democrats on trial, scorning her charges as a "travesty" and condemning the hearings as a "high-tech lynching for uppity-blacks." Republicans on the judiciary committee ably abetted his efforts. Utah's Orrin Hatch was surely aware by that point of the nominee's proclivity for pornographic movies and habit of describing their contents to friends. However, Hatch righteously asserted that only "a psychotic sex fiend or a pervert" could have made the statements Hill attributed to Thomas -- a proposition with which the nominee readily concurred. Nor was Hatch alone. Pennsylvania Republican

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Arlen Specter hinted darkly that Hill might be charged with perjury, while Wyoming's Alan Simpson declared that his office had been flooded with warnings Hill could not be trusted, yet provided no evidence supporting his assertion.

Meanwhile, judiciary committee Democrats, fearful of African American backlash at the polls, meekly acquiesced in the nominee's refusal to answer questions about his personal life, including what has now been documented as his extensive acquaintance with the precise sorts of pornography Hill had accused him of describing to her. They also made no more than a feeble attempt to counter Thomas's remarkable charge that the Senate's investigation of allegations against one black by another somehow constituted an exercise in racial bigotry.

The campaign in Thomas's behalf worked. In a national survey conducted the day after the Senate confirmation vote, federal and state judges overwhelmingly found Professor Hill more credible than Thomas. However, a national public opinion poll revealed that Americans believed the nominee rather than his accuser, and the Senate approved the nomination 52-48, albeit by the smallest margin of approval in over a hundred years. A year later, public opinion had flipped, with more of those surveyed now convinced that Thomas, not Hill, had lied to the Senate. Most published studies of the affair to date have reached the same conclusion.

In THE REAL CLARENCE THOMAS, authors Smith and Baugh take a different approach to assessing the justice's performance before the Senate judiciary committee and fitness for judicial office. Rather than concentrate on Professor Hill's allegations and Thomas's responses, Smith and Baugh examine discrepancies between Thomas's committee testimony and his Supreme Court record.

Cognizant no doubt of the role opposition to ROE v. WADE (1973) had played in the defeat of Robert Bork's nomination, Thomas claimed before the committee that he had never formed an opinion about ROE and indeed could not recall ever discussing that most controversial of modern rulings -- even though he had served on a White House task force that recommended ROE's dismantling. Senate Democrats were incredulous, and at least one frustrated journalist labeled Thomas a "liar or boob." However, that was the nominee's story, and he stuck to it.

Thomas did answer general queries, however, regarding a number of constitutional questions, including those relating to congressional regulatory power, federalism, criminal justice, affirmative action and related equality issues, and church-state relations. In marked contrast to the positions he would assume as a justice, the nominee rarely took issue with prevailing precedent in his judiciary committee testimony. During the confirmation proceedings, he readily endorsed the broad construction the Supreme Court had given Congress's regulatory powers except in the laissez- faire era; accepted precedents supporting certain forms of affirmative action, whatever his personal attitude toward such programs; empathized with the plight of (the mostly black and poor) defendants in criminal cases, and seemingly embraced the broad guarantee to church-state separation required by LEMON v. KURTZMAN (1971).

As a justice, on the other hand, Thomas has ascribed to the commerce clause a more narrow construction than that

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embraced by any other modern justice and even applauded the laissez-faire Court's restrictive reading of congressional authority -- an interpretation arguably repudiated by a majority of the Court through most of its history. The justice has also written or joined opinions harshly critical of affirmative action, expansive readings of criminal procedure rights, and the LEMON test.

Smith and Baugh critically review Justice Thomas's "original intent" jurisprudence, the consistently conservative direction in which that approach to constitutional construction has taken him, and his response to a variety of constitutional issues. Their focus, however, is on the justice's record in criminal justice, racial discrimination/affirmative action, congressional power/federalism, and religion cases, especially the relationship between those elements of his decision making and his Senate testimony. Not surprisingly, they find many inconsistencies. Citing the finality of capital punishment, for example, Thomas the nominee emphasized the need to provide "all the rights and all the due process that can be provided and should be provided to individuals who face that kind of consequence" (p. 76). The justice, by contrast, has been a leader in the struggle to limit the availability of habeas corpus to death row inmates. Along the same lines, he has even contended that the eighth amendment ban on cruel and unusual punishment does not ordinarily apply to prison conditions. Thomas the nominee appeared sympathetic to the fourth amendment exclusionary rule and MIRANDA warnings, while the justice has written or joined opinions restricting their application and is highly critical of both sets of standards. Before the judiciary committee, Thomas described his sympathy for criminal defendants, many of whom were from his race and background, adding, "So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes, and I can bring something different to the Court" (p. 108). On the bench, however, his race and humble origins hardly appear to have influenced his reaction to criminal justice claims or issues of racial equality.

Issue by issue, Smith and Baugh chronicle other discrepancies between Thomas's confirmation rhetoric and Supreme Court record. Thomas would contend that judges should base their constitutional interpretations on text and the framers' intent, not on social, economic, or ethical predilections drawn from their backgrounds or other sources. However, for Smith and Baugh, that is not the point. Although they question the consistency of the justice's adherence to his own version of original intent, they are more concerned that from the beginning of his tenure, rather than later, when time might have permitted an evolution in his thinking, the patterns of his decision making stood in marked contrast to much of his confirmation testimony. They make a very convincing case and one, unlike the Hill-Thomas credibility debate, that is easily documented.

Unfortunately, however, they go further and suggest that inconsistencies between a nominee's Senate testimony and later voting patterns -- particularly those developed immediately after a justice assumes the bench -- may constitute perjury. Since perjury is an impeachable offense, Clarence Thomas's statements before the judiciary committee arguably furnish adequate grounds for his impeachment. That proposition poses several difficulties. First, such proceedings, as Smith and Baugh concede, might do serious harm to our tradition of judicial independence. Judges

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fearful of impeachment might make decisions contrary to their judgments about what the law requires in particular cases, simply to avoid a conflict with their Senate testimony. Second, inconsistencies between a justice's Senate statements and later record are often more apparent than real. Nominee Thomas's insistence that death row inmates be given "all the due process that . . . should be provided," for example, is not necessarily in conflict with Justice Thomas's desire to limit their opportunities to challenge their convictions and sentences through habeas proceedings. Third, nominees' responses to queries about their general positions on constitutional issues can hardly be equated with their reactions to specific claims raised in particular cases. One should not condone the "artful dodging" and outright lying to which nominees sometimes resort in seeking to survive the politics of the confirmation process. However, neither should such testimony bind their hands in cases they have not yet heard.