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The Image of Justice


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EDITOR’S NOTE:National Review is celebrating its 50th anniversary this week. Throughout the week, NRO will be running pieces from the archives to help take a trip down memory lane. This piece appeared in the July 29, 1991, issue of National Review.

A POWERFUL IMAGE of Thurgood Marshall has emerged from the media in the wake of his unexpected resignation: the first black Justice, formed by the civil-rights struggles of the 1940s and 1950s, committed to race neutrality and race preference in succession as each became the respectable meaning of “civil rights.” Such an image is, to an extent, a proper expression of the etiquette of politics. Justice Marshall has been a participant in great events; his courage and dignity in an earlier phase of civil-rights politics were admirable; his more recent ramblings, querulousness in defense of statism, may be passed over for the moment.

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But the image also underscores a dramatic social and political moment: a paladin of the black civil-rights leadership and a symbol of its alliance with white liberalism is to be succeeded by a black Justice, Clarence Thomas, openly scornful of the values of that same civil-rights leadership and committed to the traditional mores of Middle America, which happen to be shared by much of black America.

This contrast is important and sends a welcome message to the part of the black community that is disaffected from its “leaders.” The message is: you have a right to your own opinions. A recent poll indicates that 47 per cent of American blacks agree with Judge Clarence Thomas that black individual achievement is preferable to hiring quotas. Claudia Butts, director of the minority outreach program at the Heritage Foundation, argues that the Great Society welfare programs “have become icons or sacred cows. But we look and see that our kids are addicted to drugs, our fathers are missing, our young girls are in the cycle of teenage dependence and welfare.” David Bostis, senior research associate at the Joint Center for Political and Economic Studies, which specializes in black issues, argues that “Southern blacks in particular–the South is still the region where 60 per cent of the blacks live–tend to be conservative about personal values. They’re almost universally religious. There’s very strong support for the death penalty.” The nomination of Judge Thomas reflects a growing black independence of mind that even Senators Metzenbaum, Kennedy, and Biden cannot repeal. Free at last.

But if they cannot repeal the social fact, will they perhaps be able to reject this incarnation of it? Thomas, by virtue of the color of his skin, will be insulated from the worst bullying tactics of senatorial inquisitors. Their first response was to hint that any black nominated by a Republican President must be by definition the beneficiary of a quota, by extension a token, and by implication an Uncle Tom. Such talk is liberal racism and every bit as contemptible as unhyphenated racism. But it carries its own punishment: the further disaffection of millions of American blacks from liberal politics.

Ultimately, however, the importance of Supreme Court Justices is not in the image they offer but in their workaday decisions that affect our lives. Clarence Thomas’s (and George Bush’s) legacy will be defined not by his pigmentation, but by his written opinions and by whether he contributes to the transformation of the Supreme Court into a responsible interpreter of the Constitution.

On the basis of what is known, there is every reason to believe that Judge Thomas will live up to his promise. Truth be told, however, his public record on issues other than civil rights is still more Souteresque than Borkian. So it is vital that conservatives, during these brief moments of accountability in the judicial-selection process, should participate fully in public dialogue with the nominee. Unlike the liberals, however, our aim should be to learn not what Judge Thomas thinks about abortion, South Africa, contraception, and funding for the arts, but what he thinks about the role of the judicial branch within our constitutional system.–The Editors



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