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Shades Of Clarence Thomas, Herman Cain & So-Called “High-Tech Lynching”

Submitted by on November 4, 2011 – 9:06 amOne Comment

This week’s breaking political news was Herman Cain’s begrudging admission that he had been accused of sexual harassment as an executive with National Restaurant Association over a decade ago. This recent revelation reminded me of the first time the term “sexual harassment” became part of the national lexicon. It was 1991 when Anita Hill came forward leveling similar allegations against Clarence Thomas during his confirmation hearing. The concussive nature of that charge changed the course of history—the liberal versus conservative litmus test of the typical confirmation remained but this hearing rippled with far greater social implications (which turned out to be both a blessing and a curse).  While countless people, mostly women, were liberated from the debilitating atmosphere of a sexually charged workplace, one negative has been that there is another mechanism for economic opportunism or spiteful revenge for those who would falsely claim harassment anticipating a payout or a payback.

So, beyond their own self-description as “black conservatives” and the potential repeat of a “high-tech lynching” as a result of sexual harassment charges, are there other parallels between Herman Cain and Clarence Thomas? Perhaps one of the most compelling similarities is that both men have been able to seamlessly shift success, without being exceptional, in one area to positions or visibility that may have long term and profound impact on social issues and public policy. Despite being a relative political novice, Cain has been able to translate his successful stint as CEO of Godfather’s Pizza to being the Republican Party Presidential nominee front-runner.  Before being nominated for a life appointment to the Supreme Court, Thomas had served as a Federal Judge for about one-and-a-half year. Prior to that, his professional career of roughly sixteen years included eight years as Chairman of the Equal Employment Opportunity Commission (EEOC), three years as a corporate lawyer for Monsanto, three years as an Assistant Attorney General, and two years as a legislative aide to the Senate Commerce Committee.

Consider what was publicly known about Thomas two decades ago, when he was confirmed as a Supreme Court Justice, filling the seat vacated by Thurgood Marshall. He had not litigated many, if any, groundbreaking cases; he had not published many, if any, seminal decisions or papers as a Judge or a jurist.  He was mostly known for his own personal success in becoming the first in his family to attend and graduate college, and in conservative circles for the partisan way he headed the EEOC.

So in November 1991, Judge A. Leon Higginbotham (the Judge), wrote an open letter to Thomas that was published in the University of Pennsylvania Law Review.  The letter was a call to consciousness, admonishing:

“You and other Justices cannot avoid putting your imprimatur on a set of values. You must reflect more deeply on legal history than you have ever before.  You are no longer privileged to offer flashy one-liners…Now what you write must inform, not entertain. Now your statements and your votes can shape the destiny of the entire nation.”

The Judge broached how Thomas came to be in the position he was in and whether there was a “force of history” to be embraced:

“When I think of your appointment to the Supreme Court, I see not only the result of your own ambition, but also the culmination of heartbreaking work by thousands who preceded you.  I know you may not want to be burdened by the memory of their sacrifices.  But I also know that you have no right to forget that history.  This history has affected your past and present life.”

The Judge cited that in 1984 the Washington Post quoted Thomas as criticizing traditional civil rights leaders because instead of trying to reshape the Administration’s policies, they had gone to the news media to “bitch, bitch, bitch, moan and moan, whine and whine.” He then went on to remonstrate Thomas that were it not for the past efforts of civil rights leaders, in demonstrating throughout the Civil Rights Movement and in litigating against policies and laws, in cases such as Brown vs. Board of Education, Buchanan vs. Warley, Shelley vs. Kraemer, and Loving vs. Virginia, laws discriminating in voting, education, housing and miscegenation would still be the rule and practice of the land, both publicly and privately.

The Judge’s open letter was controversial, but it was brilliantly written and it forced reflection, discussion, and decision on issues that many wanted to gloss over or simply hope for the best. The Judge articulated the standard he thought to be timeless: “While there are many other equally important issues that you must consider…none will determine your place in history as much as your defense of the weak, the poor, minorities, women, the disabled and the powerless.”

Even though the letter is two decades old, it is as relevant today as it was then. Interpreted strictly, the Judge was chiding Thomas’s indifference to statistics or experience in deference to dogma. Taken more generally, the Judge’s imploring can apply to everyone—decisions have to be made more thoughtfully with a reference to history in context and not just political ideology.

For the past two decades, Thomas has hued closer to the standard of natural law or where the Constitution should be interpreted as the Framers would have interpreted it. Here is an excerpt from a speech Thomas delivered in 2001:

“When interpreting the Constitution and statutes, judges should seek the original understanding of the provision’s text if the meaning of that text is not readily apparent.  The Constitution means what the delegates of the Philadelphia Convention and of the state-ratifying conventions understood it to mean, not what we judges think it should mean.  Aside from amendment, according to Article V, the Constitution’s meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President.”

It is not clear how one deduces what the “delegates understood it to mean.” Aside from that, depending on whether one includes all who were invited, attended, signed or led the Federal Convention in Philadelphia, the Framers of the Constitution number between seven to seventy four educated men from the landed gentry from the 13 colonies some 235 years ago.  Certainly Benjamin Franklin and George Washington were exceptional historical figures, but on the whole there were no minorities, no women, or even anyone from California. There were things that were not yet in the collective experience (say aniPad) and practices that had yet to be repudiated (slavery).  So while the document that was produced was exemplary, it is not perfect and hence, the very existence of Amendments.

Views like “the poor have only themselves to blame for not being rich” or being openly dismissive of the message of demonstrators, or even of the value in demonstrating itself, should force us to reflect: are and should all results be “every man for himself”?  Do regressive tax plans promote our future competitiveness and address the need for improvement in the education and health care sectors? Does it speak to our investment in infrastructure and technology?  What about the environment and sustainable energy sources?  When the outcomes are increasingly unequal, should we re-examine whether the system is fair, whether there should be a social contract, and whether these are the type of political leaders that are best suited to navigate during these turbulent social and economic times? Are you ready to move to “UBecky, becky, becky”?  How’s that for brainwashing?

[Please read Judge A. Leon Higginbotham's letter to Clarence Thomas here, in it's entirety. We promise, it's worth the time.]

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