A RECORD THAT SPEAKS FOR ITSELF

Thomas's record on the Supreme Court reflects the conservative brand of anti-civil rights politics he brought to it. As a sitting justice, he has argued that affirmative action is the legal and moral equivalent of slavery, and that Whites mildly inconvenienced by school desegregation policies suffered in the same way and to the same degree that Linda Brown and the other plaintiffs of Brown v. Board suffered during the era of American apartheid. Moreover, he has argued that Blacks fleeing government persecution in Haiti should be returned to that country without first determining if any of them qualify for political asylum. In his judicial opinions, Thomas has unfailingly favored the interests of Whites over the interests of Blacks, the interests of employers over the interests of workers, the interests of government over the interests of individuals, the interests of corporations over the interests of regulators, the interests of police officers and prison guards over the interests of prisoners, and even the interest of executioners over the interests of innocents condemned to die. He has ruled to scale back programs that opened doors long closed to women and people of color in higher education and in employment; he has limited the application of the Voting Rights Act; and he has championed a vision of the Eighth Amendment's provisions regarding cruel and unusual punishment that now authorizes incarcerated inmates to be brutally beaten.

Thomas's work on the Court has been so detrimental to the Black community that it is fair to say he has already done more to turn back the clock on racial progress than perhaps any other Black public official in the history of this country. What is more, his record on the Court could have been easily predicted. Thomas's politics at the time of his nomination and appointment meshed closely with a conservative political agenda that was and continues to be extremely unpopular among Blacks (Newsom Reference Newsom2004). It was and remains an agenda associated with the politics of far right-wing Republicans—an agenda that many prominent Black political and civic leaders do not believe embraces the genuine interests of the Black community. Indeed, Blacks have paid an extremely high price for Thomas's judicial decisions. In Adarand Constructors v. Pena (1995), for instance, Thomas voted to limit affirmative action programs designed to help minority businesses overcome historically discriminatory patterns of exclusion in the allocation of federal contracts. With a voting record thought by many to be reactionary even for a conservative court—conservative enough to draw profuse praise from Rush Limbaugh (Wiener Reference Wiener2007)—Thomas quickly demonstrated he would consistently vote against positions defended by civil rights activists while supporting Court decisions against majority Black congressional districts, urban school children, death row inmates, minority contractors, affirmative action programs in higher education, and Black refugees.

Over the course of his career, before being elevated to the Supreme Court, Thomas served as Assistant Secretary of Education for the Office of Civil Rights in the U.S. Department of Education (1981–1982), as Chairman of the U.S. Equal Employment Opportunity Commission (1982–1990), and as a federal judge on the United States Court of Appeals for the District of Columbia (March 1990–October 1991). His actions in these roles helped him build a longstanding and well-deserved reputation for steadfastly articulating, promoting, and practicing a brand of anti-civil rights politics. Thomas's career was cut from the ideological cloth of a far right-wing conservatism. It included a genuine contempt for key facets of the civil rights tradition—a social justice tradition that is held in the highest esteem by the vast majority of African Americans (Cummings Reference Cummings2005).

How then was it possible for Thomas to secure the support of the Black community? The civil rights tradition, after all, had not only nurtured and fueled the career of the legendary Supreme Court Justice Thurgood Marshall—the African American whom Thomas would ultimately replace on the Court—it had undoubtedly opened doors for Thomas that had been firmly closed to earlier generations of Blacks (Onwuachi-Willig Reference Onwuachi-Willig2005). In fact, Justice Marshall had been widely admired within the Black community precisely because he had been such a huge champion of this tradition. So why, then, did so many Blacks support Thomas notwithstanding his serious misgivings about a revered egalitarian tradition within Black America—misgivings that would ultimately be reflected in his work on the Court?

WHY THE ENTHUSIASTIC SUPPORT FOR CLARENCE THOMAS?

Millions of African Americans who actually supported Justice Thomas's nomination and appointment to the Supreme Court would not have expected twenty years ago that Thomas would provide that critical vote to bury the most significant accomplishment of the Civil Rights Movement, and that he would be the only one among the nine Justices who would have done it sooner, and would have gone even further in subverting it if he had had the opportunity to do so. Ironically, at the time of his nomination, his army of supporters embraced an array of community leaders including well-known figures who now no doubt would bemoan the passing of the Voting Rights Act, and other racial justice setbacks that Justice Thomas has supported. Yet these same figures in the midst of the controversy surrounding his nomination—people like Arthur A. Fletcher, the former Chair of United States Civil Rights Commission, Louis Farrakhan, Nathan and Julia Hare, and Maya Angelou—were adamant in their defense of Thomas's confirmation back in 1991. Criticism of Thomas was met with unrelenting advocacy on his behalf and sometimes even anger and outrage, largely expressed through the insistence that the community should “give a brother a chance.” Partly owing to the support he received from a significant majority of the Black community (both before and after Anita Hill's allegations), Thomas was appointed to the Supreme Court.

Today we live with the dire consequences of that appointment, consequences that will no doubt endure for some time to come (Russell-Brown Reference Russell-Brown2005). Today many of Thomas's initial defenders have voiced their disappointments and some have gone further to articulate deeper critiques of this African American jurist. By 1995, many Blacks who had initially supported Thomas—or at the very least decided not to oppose him even though they found his politics reprehensible—had already come to regret their decision. Moreover, by this time, the Reverend Al Sharpton—had already held a protest march outside his home to oppose his actions on the Supreme Court (New York Amsterdam News 1995).

At the time of his nomination, however, none of Thomas's anticivil rights perspectives seemed to matter for a wide array of his supporters. The substance of his political agenda would disappear in the face of the rush to usher him into high office. So, then, this turn of events raises critical questions about how and why a politics of racial solidarity could be so readily available to someone who set out to deny the interests of a community that he ultimately appealed to in order to become a Supreme Court Justice.

We should keep in mind though that the desire to have Justice Marshall replaced by another Black person was exceedingly high in the Black community—so high, in fact, that many Blacks appeared to feel that any competent African American appointed to replace Justice Marshall would be better than any White person, no matter the substance of their respective political agendas (Onwuachi-Willig Reference Onwuachi-Willig2005). Morevover, the public discourse surrounding his nomination was energized by a form of identity politics that privileged the situations of heterosexual African American men.

AN INTERSECTIONAL CRITIQUE OF THE SUPPORT FOR THOMAS'S APPOINTMENT

I argue that Thomas was given “the benefit of the doubt” on more than one occasion due to visions of politics and antiracism that are patriarchal and heterosexist in nature—visions that are destructive of both the short- and long-term interests of the Black community. In addition, the gender politics that were at play suggest that had Thomas been a Black woman with a similar right wing conservative political agenda accused of discriminating against, say, an African American man, it is extremely unlikely her nomination to the highest court in the land would have garnered the robust support his nomination ultimately engendered among Blacks.

Few have recognized how the moment of Thomas's appointment was enabled by some of the same political investments that continue to mark the center of gravity in Black political discourses. Part of what made the wide political convergence around Thomas's nomination possible were investments in the narrative trope of the endangered Black male—a trope that continues to anchor, discipline, corral, and silence Black antiracist discourse and solidarity into a chorus that extolls the singular experience of Black male suffering as the centerpiece of African American politics. It was this appeal—repackaged and mobilized for conservative ends—that allowed Clarence Thomas to save a troubled nomination and to become one of the most effective tools in the efforts to dismantle and reverse the short and brilliant history of the expansion of civil rights to people of color in the United States.

A narrow racialism, combined with the appeal of the trope of the endangered Black male, enabled Thomas to drum up support at the time of his nomination despite his opposition to the legal tools that had partially demolished White supremacy in the United States. Consequently, the damage that Thomas's tenure on the Supreme Court has inflicted on justice at large is a sobering illustration of the costs of a single-axis approach to antiracist politics rooted in shallow conceptions of racial loyalty. In effect, it demonstrates that the failure to interrogate intra-group forms of patriarchal advantage and sexist conceptions of racial solidarity in this society can grievously undermine struggles for social justice.

Should Justice Thomas have been given the benefit of the doubt? Had his nomination been viewed through a different ideological lens, I believe the Black community might well have collectively come to another conclusion about his suitability to serve as a Supreme Court Justice. The frame I have in mind is a Black feminist perspective—one that is intersectional in nature. It is a frame that attends to issues of race, class, and gender in addition to other socially constructed identities that can serve to marginalize and even erase the genuine concerns of members of discrete social groups. In its most sophisticated iterations, the intersectional framework throws light on the complex ways in which systemic forms of subordination can circumscribe opportunities for members of marginalized groups in distinct and extraordinary ways (Crenshaw Reference Crenshaw1989, Reference Crenshaw1991; Harris Reference Harris and Carbado1999; Roberts Reference Roberts1991, Reference Roberts2001). But, perhaps most importantly, this framework has the potential to richly illuminate how some visions of identity politics promote patriarchal and heterosexist conceptions of antiracism and social justice that can have devastating consequences for Black America.

THE PERILS OF A SINGLE AXIS RACIALISM AS A NORMATIVE BAROMETER

The perils of a narrow form of racialism as a normative barometer of the Black community's needs first crystallized for me during the events and debate surrounding the nomination of Thomas to the Supreme Court in 1991. Thomas had been one year ahead of me at Yale Law School in the early 1970s, where I knew him to be an acolyte of the politically conservative faculty member Robert Bork. Consequently, I had serious reservations about supporting him “at all costs” without first interrogating what he stood for and what he stood against. After all, when Bork himself had been nominated to the Supreme Court, the Black community had come out in full force in opposition to the appointment. At the very least, I thought that Thomas had to be rigorously scrutinized.

Making my own assessment, I opposed Thomas's appointment to the Supreme Court because it appeared to me he had built his entire career on the dismantling and neglect of a broad array of public policies and social programs beneficial to many deserving people, including members of the Black community like me and Thomas himself. I had been shocked by Thomas's public rebuke of his own sister for briefly needing welfare assistance to care for their elderly, invalid aunt (Greenburg Reference Greenburg2007). I had been appalled by his selective enforcement of antidiscrimination laws while Chairperson of the Equal Employment Opportunity Commission—for instance his pocket veto of thousands of claims by the elderly (Los Angeles Times Reference Frantz1991; Smith and Baugh, Reference Smith and Baugh2000). I had been dismayed by his longtime personal associations with lobbyists for the racist South African apartheid regime at a time when Nelson Mandela was still imprisoned on Robben Island (New York Times 1991; On the Issues 2013).

When Thomas was nominated for a seat on the Supreme Court, I found it both bitterly ironic and profoundly disturbing that he had been chosen to “replace” Justice Marshall. Marshall had fought courageously as a lawyer to end American apartheid. After he had been appointed to the Supreme Court, he had championed the rights of minority Americans and those on the margins of society. Thomas, by contrast, had fought to end most of the very social programs that had opened up opportunities for himself and countless other people of color—such as affirmative action initiatives which had served as one of the principal tools created to promote equal opportunity in the post-Jim Crow era (Niles Reference Niles2002). So, even prior to the charges of sexual harassment made by Anita Hill, I was troubled by the desire that existed within the Black community to elevate Thomas to the highest court in the land, especially considering his rejection of key facets of the civil rights tradition that had partially knocked down the walls of apartheid in the United States. I was troubled by the narrow brand of racialism that seemed to underlie the widespread support of his nomination by many Blacks who were otherwise decidedly opposed to his conservative political agenda—a group that included not only Arthur Fletcher, and Maya Angelou, but also other extraordinarily articulate and thoughtful proponents of the civil rights tradition such as: Joseph Lowry, the former president of the Southern Christian Leadership Conference; Calvin Butts, the influential pastor of the Abbysinian Baptist Church in Harlem, New York; and Margaret Bush Wilson, the former Chair of the Board of Directors of the NAACP. How could I not be troubled?

As Columbia Law School professor Kendall Thomas (Reference Thomas and Morrison1992) observed at the time:

I feared that the Civil Rights Movement was being destroyed in waves—killing its leaders was only one strategy. Killing its vision and replacing it with Black voices who legitimated civil rights reversals was another. And, to my way of thinking, it was all the more effective precisely because we were corralled to participate in our own undoing. Today, instead of Thurgood Marshall's presence on the Court, which signaled the victory of hundreds of years of collective struggle mandated by a linked fate, the presence of Clarence Thomas presents the civil rights tradition as a story of individual success, the triumph of a singular battle to put a dark face in a high place. Instead of Justice Marshall's insistence that the Thirteenth, Fourteenth, and Fifteenth Amendments had imbued the law with the imperatives of an antisubordination perspective, Justice Thomas claims that the harm done by acknowledging racism is as great as the harm done by racism itself. Furthermore, the dramatic story of Justice Thomas's trajectory from an impoverished childhood in Pin Point, Georgia to a seat on the Supreme Court was used to obscure the contradiction between his stated opposition to affirmative action and his life history of benefiting from it. Perhaps most problematic was the glaring contradiction that Thomas's elevation represented: the Black justice who would become a fierce opponent of affirmative action because it allegedly promoted people of lesser ability into positions they did not deserve was, at the time of his nomination, a forty-three-year-old inexperienced and undistinguished jurist who had never tried a case or argued an appeal in any federal court and who had never produced a single work of legal scholarship.

RETHINKING THE CLARENCE THOMAS/ANITA HILL SENATE HEARINGS THROUGH THE PRISM OF AN INTERSECTIONAL ANALYSIS

My initial serious reservations about Thomas's nomination were further exacerbated by the credibility of Anita Hill's charges. I firmly believed Hill deserved the benefit of the doubt rather than a litany of accusations that she was, among other things, a race traitor, a sexual pervert, a lunatic, a spurned lover, a male basher, a liar, and too well educated and career oriented to be “a real sister.” Hill had done nothing to deserve such a pillaring except reluctantly reply to questions posed to her about whether she had been sexually harassed (Abramson and Mayer, Reference Abramson and Mayer1994). Originally, she had not even intended to come forward. As the nationally televised Senate confirmation hearings for Justice Thomas were drawing to a close, however, she was called upon to testify after an FBI interview with her was leaked to the press. In the face of that reality, Hill—who had initially worked for Thomas at the Department of Education and then followed him to the EEOC when he became its Chairman—found herself in a situation where she was left with no choice but to testify. So she testified. At the hearings, she claimed that Thomas had subjected her to lurid sexual conversations which she felt had amounted to sexual harassment—conversations that had represented to her, at the very least, “behavior that [was] unbefitting an individual who will be a member of the Court” (Mears Reference Mears2011).

Hill's testimony included vivid details. In response, a number of senators aggressively questioned her veracity. Thomas denied all of her allegations (Abramson and Mayer, Reference Abramson and Mayer1994). He maintained that the Senate hearings were an outrageously inappropriate forum within which to raise the sorts of claims Hill had put forward. He reasoned as follows:

What appeared to be remarkably disingenuous was Thomas's claim that he had been the victim of a so-called “high-tech lynching.” In response to it, along with Carleton Long, then an assistant professor of Political Science at Columbia University, I cofounded a protest group, African American Men in Support of Anita Hill, which spearheaded the creation of a petition signed by a large group of distinguished African American academics—including John Hope Franklin, Diane Pinderhughes, Derrick Bell, Kimberlé Crenshaw, Deborah King, Beverly Guy Sheftall, and Manning Marable. We objected not only to Thomas's conservative political agenda, but also to his blatant misuse of the lynching metaphor.

Soon after creating the protest group, I traveled to Washington, D.C. to work with Kimberlé Crenshaw on Anita Hill's support team. During the confirmation hearings, I spoke at major news conferences, addressed and worked with women's groups from around the country, and participated in live interviews on national television in opposition to the Thomas appointment. In these settings, I argued that Thomas's use of the “high-tech lynching” metaphor was uncalled for and that Hill had every right to make allegations of sexual harassment against him. But, I was acutely aware at that time of the wide-ranging support his nomination enjoyed within Black America (Russell-Brown Reference Russell-Brown2005). I knew full well many Blacks seemed to be completely mesmerized and blinded by his provocative use of the lynching metaphor to defend himself.

As Kendall Thomas (Reference Thomas and Morrison1992) noted “[i]n one painful metaphor Thomas's testimony had invoked [the] scandalous history of the ritual torture, mutilation, and murder of thousands of Black Americans at the hands of White mobs” (p. 367). He had galvanized support for himself by using perhaps the most powerful metaphor for suffering in the Black community: a metaphor which as an historiographic subject has traditionally ignored Black women who also were lynched; and that has come to symbolize only the suffering of Black men. Lost in the bluster of Thomas's use of the metaphor was the reality that no Black man had ever been lynched at the behest of an aggrieved Black woman. Also lost in the wake of his use of the lynching metaphor was the fact that there was little or no evidence to support the idea (suggested by some of his supporters) that Hill—a relatively conservative African American young woman who had chosen to work for the ultra-conservative Clarence Thomas—had publicly attacked him because she was “a tool of the liberal White establishment.” There is much to doubt about this narrative particularly since so many similarly qualified law school graduates of that generation had chosen not to pursue jobs with Thomas precisely because we disagreed with his politics. We thought he was put in place to subvert civil rights laws, not to promote and advance them. Hill was not amongst our number. The truth, however, did not seem to matter in this context; and, as a consequence, I began to recognize that remarkably uncritical male-centered and heterosexist visions of Black politics and antiracism were eventually going to ensure the success of Thomas's nomination to the Supreme Court (Thomas et al., Reference Thomas, McCoy and McBride1993).

For many “brothers” and “sisters,” the mere fact that Thomas was a heterosexual Black man seemed a sufficient condition to warrant supporting him despite his questionable relationship with the truth and an extensive record on his part that bore witness to his promotion of a variety of public policies perceived by most Black people to be deeply inimical to the interests of their community. Indeed, his status as a Black man appears to have garnered support for him from many who would have likely opposed a White man or woman with his record and political views. I seriously doubt given the same record Thomas would have received a similar degree of support had he been a Black woman.

Certainly this brand of uncritical narrow racialism was not mobilized on behalf of Anita Hill. Her charges against Thomas seemed to inspire only anger and resentment from many quarters of the Black community, including from many Black women. Thomas may have received more support from Blacks after Hill's allegations of sexual misconduct because the allegations cast Thomas as a “Black man in trouble, which is perennially a cause for high levels of Black mobilization” (Walters Reference Walters, Scholar, Chrisman and Allen1992, p. 215).

As a result, I was deeply concerned that Anita Hill had become persona non grata for many Blacks because they felt that even if her allegations were true she should not have sought to bring a brother down. The response of the Black community seemed to suggest that Black women should put “loyalty to their race” first and foremost, even in cases where they may have been subjected to unprofessional or predatory conduct by Black men. “Loyalty to the race” in this interpretation clearly did not extend to cover any loyalty that Black women might have towards themselves or towards any other Black women in similar situations of victimization. Nor did it require the Black community to support Anita Hill on the grounds of her membership within that community. In effect, Hill's status as a woman undermined her status as a Black person “because White is the default race in feminism and male is the default gender in antiracism” (Crenshaw Reference Crenshaw and Morrison1992, p. 438, n7). In this vein, bell hooks (Reference hooks1996) has noted that “to support the race and not be seen as traitors, [B]lack women were and are still being told to express racial allegiance by passively accepting sexism and sexist domination” (p. 93).

Loyalty is a one-way street here and it is a gendered highway. When a prominent Black man's reputation was at stake, Hill, as a Black woman, was supposed to refrain from airing the dirty laundry of the Black community, or risk being viewed as a traitor. But, Thomas was held to an entirely different standard. He was not compelled, for example, to demonstrate his loyalty by defending race-conscious affirmative action initiatives and social welfare policies that many of his supporters thought were crucial to the well-being of the Black community. Instead, he was somehow entitled to our blessings, even in the face of serious allegations suggesting he had abused an African American woman. The message this sent to Black men and women was devastatingly simple. When Black women challenge the claims of Black men, the concerns of Black men trump the concerns of Black women.