SUPREME COURT MATTERS: COLORBLIND CONSTITUTION V. RACIAL TRIBALISM

Two years ago, Presidential Candidate Joe Biden promised to nominate someone with black skin for the United States Supreme Court, should he ever get the opportunity. With Justice Breyer announcing his retirement, President Biden now has the opportunity. 

Sorry, Dr. King. A nation in which citizens are judged “by the content of their character” and not “the color of their skin” isn’t going to happen on Joe Biden’s watch. He judges nominees on the color of their skin.

CLARENCE THOMAS

It’s curious that now, as President, Biden limits the pool of possible Supreme Court jurists to people with dark pigment. In 1991, then-Senator Biden had an opportunity to assist Clarence Thomas take a seat on the Supreme Court bench. Yet, Biden did everything within his power to stop it.

The life of Clarence Thomas should be an inspiration for all Americans. Born into the mires of poverty, compounded by Jim Crow racism, violence, and injustice, Thomas was anything but destined by birth to high government positions and circles of political elites.

Through his studies, Thomas discovered the Socratic statesmanship of Abraham Lincoln. Lincoln, in turn, opened Thomas’s mind to the American Founders and the great philosophic tradition of which they were part.

In the principles of the American Founding, especially the ideas enshrined in the Declaration of Independence, Thomas discovered the remedies to the racial injustices he observed and experienced growing up in Georgia, a state that had been long-controlled by a political class of Democrats who mocked the principles of the Founding.

Early in his career, Thomas began writing and speaking about the American idea that every human being possesses a rightful claim, by nature, to his or her own “life, liberty, and the pursuit of happiness.”

MORAL DEFENSE OF THE CONSTITUTION

One need not look outside the Constitution for the moral natural law referenced in the Declaration, Thomas came to understand. It’s in the Constitution.

Thomas openly celebrated Justice John Marshall Harlan’s famous dissent Plessy v. Ferguson: “There is no [racial] caste here,” Harlan observed. “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

The colorblind Constitution, Thomas has argued persuasively, trumps blatantly unconstitutional, tribal policies of race-based preferences, discrimination, and affirmative action. Against progressive tribalism, group-based rights, and entitlements, Thomas demonstrates that only the equal protection of the laws for the equal natural rights of each and every United States citizen aligns with the good and true principles of the American Founding.

When President Bush nominated him for the Supreme Court in 1991, Clarence Thomas quickly learned that his greatest opponent was neither the Ku Klux Klan nor any racist rural sheriff. It was Joe Biden — then a United States Senator and chair of the Senate Judiciary Committee — and the mostly-white, college-educated progressive political allies who joined Biden’s effort to destroy Thomas.

When Thomas’s hearings began, then-Senator Biden focused on what he considered Thomas’s troubling embrace of the principles of the American Founding. Said Biden:

“Judge Thomas, you come before this committee with a philosophy different from that which we’ve seen in any Supreme Court nominee in the nineteen years since I have been in the Senate. [Y]ou are an adherent to the view that natural law philosophy should inform the Constitution. Finding out what you mean when…is, in my view, the single most important task of this committee.”

It’s telling that in his previous nineteen years in the United States Senate, Biden had never encountered a nominee for the Supreme Court who believed in the natural law principles of Jefferson, Madison, Hamilton, and Lincoln.

When that line of attack failed, Biden oversaw the Senate committee hearing degenerate into a bawdy, desperate farce, welcoming Anita Hill and setting the precedent for unsubstantiated accusations of sexual harassment eclipsing serious discussions about the judicial branch, its purpose within our constitutional republic, and the constitutional mastery someone should possess before accepting a seat on the bench. 

CONSTITUTIONAL FIDELITY MATTERS, SKIN COLOR DOESN'T

Joe Biden’s chairmanship of Clarence Thomas’s 1991 confirmation hearings remains one of the most shameful chapters in modern American history. The good news was that, despite Biden’s efforts to derail the nomination, Thomas prevailed and was confirmed by a Senate vote.

For three decades, Clarence Thomas has been one of the few sitting Supreme Court justices who prioritizes the Constitution over preferred political outcomes while President Biden now tells us it is important to nominate someone for Supreme Court who has black skin, by which he likely does not mean a black-skinned, devoted constitutionalist like Clarence Thomas.

Responses

  1. Thanks for the reminder of the Thomas hearings and Joe Biden’s hand in it. Even though I lived through it, I had forgotten the details. Another outrageous spectacle reminiscent of the Cavanagh hearings. When you can’t win fair revert to sleeze.

    1. I remember one thing quite distinctly about the circus that was billed as the Thomas hearings. I had just finished playing a round of golf with three friends. When we entered the clubhouse to have lunch and a drink, we noticed they had the hearings on the TV. We ignored them at first. Then we looked up and Ted Kennedy’s was shown. Before I could say a word, one of my friends, whose political beliefs are unknown to me, said, “does anybody else see the irony in THAT. What is he doing, looking for pointers?”

      Alas, like most things in DC, it was nothing more than political theater pretending to be a serious process.