Mark Tushnet on Thomas (and This Site)

Mark Tushnet is a prominent legal scholar at Harvard Law School (formerly at Georgetown), and very much a left-winger. Among other things, he notoriously once wrote that judges should adopt "an explicitly political approach to constitutional law” and make “a political judgment: which result is . . . likely to advance the cause of socialism?” Mark Tushnet, The Dilemmas of Liberal Constitutionalism, 42 Ohio State Law Journal 411, 424 (1981).

Nor is Mark Tushnet a man who is predisposed to favor Clarence Thomas, in particular. In his 2005 book A Court Divided, Tushnet recounts one of his earlier essays about Thomas:

After presenting what I still think was a relatively sympathetic account of what I thought had happened between Thomas and Anita Hill, I concluded that he had almost certainly lied in denying that anything at all had happened. Under normal circumstances, the discovery that a Supreme Court justice had lied about something important in the course of his nomination hearings would lead to an impeachment, but because that outcome was politically impossible, I wrote that legal scholars and ordinary citizens ought to take the position that Supreme Court decisions rendered by five to four majorities when Thomas was in the majority should not be regarded as law at all.

Tushnet then clarifies that he wasn't "entirely serious" about that proposal, but it still marks him as perhaps the most vigorous academic opponent of Thomas as of the mid-1990s.

But lo and behold, Tushnet changed his mind since the mid-1990s. His 2005 book A Court Divided goes on to present a much different view of Thomas. On page 72, he says this:

What [Thomas] has done on the Court is certainly more interesting and distinctive than what Scalia has done and, I think, has a greater chance of making an enduring contribution to constitutional law. Basically, anyone whom Ronald Reagan selected for the Supreme Court who had strong ties to the Federalist Society would have done just about what Scalia did. . . .

Thomas is different. There was no close competition for the seat he got, but the others who were at least considered -- Judges Laurence Silberman and Edith Jones -- were more or less standard Federalist Society conservatives. They might have been Scalia's clones. Not Thomas.

Tushnet even gives a fairly sympathetic account of what he thinks could have happened with Anita Hill:

Pp. 81-83:

I don't think Hill was fantasizing or inventing events that never happened. I also think that Thomas either was describing the events as he remembered them in 1991 . . . or was trapped by the circumstances into misdescribing the events, a completely understandable -- and not disqualifying -- response.

* * *

Thomas was a bit clumsy in approaching women for dates. Almost all the women in the dating pool were young professionals, many from the African American middle class about which Thomas was so ambivalent. He remained resentful under the surface about the fact, as he believed it to be, that many African American women wouldn't consider romance with a man as dark as he. He tried a number of ways of approaching women to see if they would be interested. Some of his methods of exploring the possibility of dating were ordinary, like asking if he could help a woman move into her new apartment . . . Another involved raising issues about sex in a joking way, a technique that wasn't rare when Thomas was a college undergraduate, to see if the woman's response suggested that she might be interested in exploring the possibility of developing a closer relationship.
* * *

Some women he approached in this way were mildly amused at what they regarded as Thomas's ineptness but not offended. Anita Hill was different. She was really offended. Like many men testing the dating waters, Thomas didn't take a single turndown as definitive. But after trying a couple of times to see if Hill would be interested in dating him, Thomas moved on.

* * *

Then, a decade after Thomas had reentered the dating market as his first marriage was deteriorating, the events with Hill resurfaced. He may or may not have recalled his efforts to date her in detail. The on thing he knew, though, was that whatever had happened wasn't anything like the way it was being presented in the media. No fair-minded person could interpret what had happened as a gross episode of serious sexual harassment (indeed, even Hill herself didn't describe it that way, although some senators -- some Thomas's supporters, some his opponents -- did). The right stance to take was the one taken by some of the women Thomas had approached -- no more than moderate amusement, perhaps a bit disdainful, at his ineptness, but certainly not shock and horror over sexual harassment.

What was Thomas to do? Knowing that he hadn't done what people seemed to think he had done, he denied that anything at all had happened. Several years had passed between the events and the nomination hearings. He had remarried, and his efforts to date women before he met Virginia weren't that important to him. Perhaps his memory blurred all his dating efforts into one large group. He may not have specifically remembered approaching Hill, and he certainly didn't remember approaching her -- or anyone -- in the way people were saying he did. Indeed, perhaps he had constructed his recollections of how he had gone about dating in light of his later success and didn't remember being clumsy about dating at all. In any case, his flat denial that anything had occurred was accurate as a representation of what he remembered in 1991.

An interesting perspective coming from a man who had been such a fierce opponent of Thomas's.

Tushnet's book includes this gem in describing Thomas's intellect:

Pp. 86-87:

To equalize the number of majority opinions each justice wrote, Rehnquist had to give Thomas important and difficult regulatory cases. On these he shone. Breyer, who sat next to him at the Court for over a decade, said that Thomas was a smart lawyer. He based this judgment on Thomas's work on these regulatory cases, in which Breyer had specialized as an academic. Kennedy noted that Thomas had a "photographic memory of the record," a real asset in complex regulatory cases.

Tushnet goes on to admit that legal academics have treated Thomas unfairly:

Pp. 88-89, 103:

One can't dismiss the possibility, raised by Thomas himself, that racism has affected the way some white academics treat him. The National Review once published a cover depicting Thurgood Marshall sleeping on the Supreme Court bench, and I believe that some white liberals have a similar view of Thomas, of a dim bulb who doesn't deserve the position he's attained. . . . Elites in the legal academy disparaged Thomas, and he disparaged them in return.

* * *

Probably because of the legacy of Thomas's bitter confirmation process, it is hard to locate serious academic commentary on his Supreme Court opinions that is even passingly dispassionate or written by someone without an obvious ax to grind. Thomas's disparagement of liberal elites, then, is only what they deserve for their disparagement of him.

Wow.

Finally, Tushnet has a note of praise for this site (or, rather, this site's predecessor) in the chapter on Scalia!

p. 147:

I haven't been able to locate a blog for other justices equivalent to "Ninomania," maintained by a law professor at Regent University (which does have a link to the extremely useful "Justice Clarence Thomas Appreciation Page").

Nice to see this site acknowledged in such a way.