Justice Affirmed

With all the contrived controversy that still surrounds Supreme Court Justice Clarence Thomas, one readily forgets the serious controversy his early speeches and writings provoked. According to the moving account of his confirmation ordeal in John Danforth’s Resurrection, Thomas’s Administration advisers "soon realized that the speeches posed a serious threat to confirmation." Former Senator Danforth relates the anxiety of Thomas’s chief adviser: "It was inconceivable to me that someone would have put in public speeches as much as he had. I have never seen that. I was amazed at everything he had in his speeches."

I too was amazed at those speeches, and I was on Thomas’s personal staff when he delivered them. The speeches were a product of discussion and debate in his office, when he was Chairman of the Equal Employment Opportunity Commission, the federal agency responsible for enforcement of employment discrimination laws. Thus it was at the center of hot issues such as affirmative action. And to be on Thomas’s staff was no ordinary federal government bureaucratic posting.

What I found so intriguing about Clarence when I first met him in early 1986 was his interest in ideas and principled political action. Through a strange series of coincidences, some popular writing of mine on civil-rights issues came to his attention. This piqued his interest in me, we met, hit it off, and he offered me a position on his staff. I would be a kind of a scholar-in-residence, offering my insights on whatever I thought was important for him
to know. He in turn would give me an opportunity to learn about all the horrors and dangers of contemporary Washington. It all seemed a bit odd to me at first, but it worked out marvelously.

My office was a few doors down from his, and when the press of agency business did not overwhelm him, we would talk during the day. Sometimes we would take long walks after lunch. He would enjoy a cigar and reflect on some issue or point that disturbed or impressed him. We eschewed the Washingtonese of inputs and outputs and spoke instead of individual freedom, moral principle, and responsibility. He might mention a book he was reading–say Allan Bloom’s Closing of the American Mind–and we would discuss it. Thomas would often debate the issues of the day–or of eternity–with his diverse personal staff, who were mostly career employees politically on the left. Sometimes a visiting scholar from out of town or someone from another agency would come by for these sessions. Thomas’s conservatism was evolving–formed in part by his background and his now famous grandfather, by his experience in government, by the discussions he had over the years with a variety of friends a
nd colleagues, but most of all by his own stubbornness and determination to make sense of a world that he saw sliding into an abyss.

Being thoroughly naive on the ways of Washington, I would describe my job and workday to astounded colleagues in other, normal Washington jobs. They would gasp in amazement: What agency head would spend time reading serious scholarly books not directly relevant to the mission of the agency? What agency head (in the world of Washington, D.C., he who is without ego is lost) would willingly submit himself to criticism and tutoring? Who else at this high a level would spend time reflecting on the philosophic underpinnings of American national government, and how they meshed with the practice of the day? And here I wished that my boss would spend more time with serious books and less with this damnable agency, which seemed to me a dangerous one to strengthen, in any case.

After a few months at the EEOC, Chairman Thomas asked me to see whether we
might expand his think-tank, and we hired, among others, John Marini, now at the University of Nevada, Reno, and author of The Politics of Budget Control. After we had been at it for a while, one former veteran of Washington remarked that he never thought that in order to have an intellectual discussion in Washington, D.C. he would have to come to the EEOC! John and I would supply Chairman Thomas with materials for editorials and speeches. Thomas would supply the Washington experience and his own seething indignation at the unscrupulous workings of Washington–the hypocrisy of those who proclaimed civil rights and denounced those who deviated from their party line as racists, those who advanced their careers by ruining their own allies, those who claimed to support the public interest but were most zealous for their own self-gratification.

The combination produced some extraordinary results–speeches of such powerful honesty and intellectual integrity that few dared express such heresy: "Congress is out of control." By setting up the leviathan state and then making government invisible to the general public, the then-current Democratic Congress had destroyed the original Constitution for its own partisan advantage. "Congress is no longer primarily a deliberative or even a lawmaking body….[T]here is little deliberation and even less wisdom in the manner in which the legislative branch conducts its business."

In other speeches and articles, Thomas assailed the civil-rights establishment for its lack of thoughtful advice on the future of black Americans. As he advised, "The task of those involved in securing the freedom of all Americans is to turn policy toward reason rather than sentiment, toward justice rather than sensitivity, toward freedom rather than dependence–in other words, toward the spirit of the Founding."

Democrats and Republicans, conservatives and liberals, corporate executives and social activists–it seemed no one escaped some withering Thomas criticism. They all missed the point–that government, despite the best intentions of some, had become the people’s greatest problem.

But Thomas was by no means a movement conservative. Far from it. Indeed, he disliked many of the conservatives he had dealings with. He couldn’t make sense of what they were up to. He always emphasized the moral and intellectual strengths of the black community which enabled them to survive and flourish even under abusive laws. Though Thomas opposed civil-rights policies such as busing, racial preferences, and set-asides, many conservative opponents of these policies struck him as racial demagogues, trying to build the Republican Party by exploiting racial hatred.

My colleagues and I argued for a conservatism based on intellectual, political, and moral principles, namely the natural-right positions of American statesmen from Jefferson, Washington, and Lincoln through the early Martin Luther King. At the core of America are the natural-right principles of equality and liberty enunciated by the Declaration of Independence. America was a land for individuals, not of, by, and for castes, whether of class or race, and thus it was a land of opportunity for those who cherished work, character, and faith.

By ignoring the question of natural-right, contemporary conservatism was making a grave mistake. It was forsaking the highest and the most appealing arguments for freedom–and ceding their basis to the left. His concern is best stated in terms of an inquiry: "Is murder wrong because it is illegal, or is it illegal because it is wrong?" Affirming the first question leads to the now-prevalent legal positivism (and moral relativism), the second leads us to natural-right (the notion of an objective right and wrong). Thomas was convinced that justice is neither the whim of a transitory majority nor of a self-anointed elite. In his Senate confirmation hearings, Thomas correctly described these "musings" on natural right as speculations of his, intended to provoke his audiences–especially conservatives hostile to the very notion of natural right, such as the politically influential conservative lawyers’ group, the Federalist Society. Indeed, to the best of my k
nowledge, Thomas never gave a speech on natural right to an audience it might flatter.

As Thomas would lament the fate of freedom in the modern world, he would also note the failure of the Reagan Administration to have a philosophically principled stance that all the major Administration figures believed in. Some Republicans were interested in fiddling with the tax structure. Others were religious zealots. Others spoke glowingly of a coming "realignment." Others, many others, were simply on the make. Who was concerned with freedom, and with principled policies? He saw the absolute political importance of the philosophic questions. A stupid party is not a victorious one, and deservedly so.

Just following the 1994 elections, Justice Thomas happened to bump into Speaker of the House-designate Newt Gingrich on the street, near the Supreme Court and House office buildings. The fellow Georgians chatted, and then Gingrich told Thomas, "You’re on the Court over here, and I’m going to be Speaker over there. Do you think that is what they mean when they talk about a revolution?"

The 1994 elections have been called Ronald Reagan’s third national victory. As Thomas’s critique of Congress makes plain, these elections could be his second victory over Congress. But they can be so only if the newly elected Congress learns from his lament in the last years of the Reagan Administration: There can be no successful political strategy without a coherent, principled, appealing political philosophy. And the heart of such a philosophy is nowhere better to be found than in the pre-judicial writings of Justice Clarence Thomas.

Ken Masugi is Senior Fellow at the Ashbrook Center and is Visiting Associate Professor of Political Science at Ashland University.