It usually takes me a few days to comment on breaking news, primarily because:
A. I am lazy;
B. I like to think about things before I write about them;
C. I spend a great deal of time locked in the bathroom, sobbing quietly to myself about the fact that Jennifer Garner chose Ben Affleck as her baby daddy and not me.
So here’s my take on the whole Milwaukee Journal Sentinel editorial where they claim Clarence Thomas should have an asterisk next to his name because he doesn’t represent the views of mainstream black America. My topical column on the O.J. Simpson trial will be forthcoming next week (Spolier alert: I think he might be guilty).
A lot of great blogs have covered the topic up and down, and the controversy has even gotten national attention. The Journal Sentinel even issued a response editorial yesterday trying to explain the editorial, in which they said:
That Thomas’ stances while on the Supreme Court are outside the black mainstream is fairly evident, we believe, on such matters as the Voting Rights Act, affirmative action, diluting black voting power, proving discrimination and on what constitutes “cruel and unusual.”
The single sentence in this editorial did not say Thomas is not black because he departs from other views on these or other topics. It did not, as some respondents contended, insist that all black people must think alike. We are well aware that there is diversity of thought in the black community, but we are also aware that there are some fairly evident common themes derived from common experiences among African-Americans in the United States.
So the MJS doesn’t think Thomas votes the “right” way on this small sliver of topics before the Supreme Court. What the Journal Sentinel fails to recognize, however, is a dirty secret in politics – that in many respects, the African American community is actually more conservative than whites. Take the strong religious black communities in the South (Thomas is from Georgia) – you think they are big on gay rights down there? Think there are a lot of Alabama pastors that own RuPaul records?
A couple weeks ago, “WNBA superstar” Sheryl Swoopes came out of the closet, admitting she was gay. This would put her directly at odds with “mainstream black Americans.” Does this mean that Swoopes now deserves an asterisk? Think she woke up the morning after she declared she was gay and realized that suddenly she wasn’t black enough?
Side note: The phrase “WNBA superstar” is an oxymoron. Like “unscented perfume.” 99% of WNBA players couldn’t get their name in the paper if they faked their own kidnapping and ended up in a marsh.
You think there aren’t African American families in the urban centers of Milwaukee that are conservative on crime issues? Every home break-in that occurs immediately gives birth to two new political philosophies – liberal (the criminal) and conservative (the victim). I imagine African Americans that work three jobs to support their families aren’t particularly sympathetic to a thug rifling through their personal possessions.
It is clear that the Journal Sentinel puts more emphasis one one’s “blackness” based on a handful of issues. But what about the other 98% of cases that come before the Court? What is the “black” position on abortion, for instance? What is the “black” position on euthanasia, or application of the Commerce Clause, or the exclusionary rule, or religion in public schools, or vouchers, or illegal search and seizure? All these issues deserve serious legal contemplation, and Thomas has shown himself up to the task on each.
If the only acceptable “black” position to the MJS is to be in favor of racial preferences, does that make Ruth Bader Ginsburg a “black” justice? Should we now give her an asterisk because she doesn’t reflect the views of mainstream white Americans? This week on “Pimp My Ride – Justice Ginsburg gets a hot tub and disco ball installed in her 1982 El Dorado.
(Keep in mind that in 1977 as an ACLU attorney, Ginsurg wrote that the age of consent for sexual activity should be lowered to 12 years old – a move hailed as “revolutionary” by singer R. Kelly. Given that opinion, I would happily trade Ginsburg to to The Black Team for, say, Halle Berry, as long as she promises not to make “Catwoman 2.”)
It is pretty clear that the Journal Sentinel is interested only in a justice that can produce their desired results in a few select issue areas, regardless of how one actually reads the facts of the cases before them. Conservatives objected to Harriet Miers’ confirmation on this very principle – while the White House seemed to be making assurances that Miers would overurn Roe v. Wade, Miers’ breathtaking paucity of experience on other more mundane issues what what forced her to rescind her nomination.
If we wanted a justice that reflects the “black” position on just a handful of issues, we should just end the charade and appoint George Clinton to the Supreme Court. At least then, we would be “one nation under a groove.”
Future Headline: “Supreme Court to Rule on Constitutionality of Waving Your Hands In the Air As if You Did Not Care.”
—————————————————————————-
On a serious note, here is an excerpt from Thomas’ dissent in the 2003 Grutter v. Bollinger case, which upheld portions of the University of Michigan’s racial preference entrance policy. If you want, read it to the tune of P-Funk’s “Flashlight,” if you think that makes it sound “blacker.”
Justice Thomas, with whom Justice Scalia joins as to Parts I-VII, concurring in part and dissenting in part.
Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:
“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).
Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I
wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of “strict scrutiny.”
No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.
The majority upholds the Law School’s racial discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court’s opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years. See ante, at 31 (stating that racial discrimination will no longer be narrowly tailored, or “necessary to further” a compelling state interest, in 25 years). I respectfully dissent from the remainder of the Court’s opinion and the judgment, however, because I believe that the Law School’s current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months.