One of my personal heroes is Supreme Court Justice Clarence Thomas. I like and respect Justice Thomas for several reasons. First, he defied all the odds. He was born in rural Georgia in 1948 into a life of deep poverty and discrimination against black people. Although the deck was stacked against him, he never gave up and—through hard work and determination—rose to become one of the nine Justices on the U.S. Supreme Court. Second, Justice Thomas is an independent thinker. He is a black conservative, which makes him very unpopular with liberals, who expect all members of various ethnic and minority groups to act and think alike. Finally, I have had the opportunity to hear Justice Thomas speak on several occasions, and I have had brief conversations with him on two occasions. He has a warm and genuine personality, and he demonstrates sincere interest in other people and in their individual life stories.
Justice Thomas has told his own life story in his own words in a book entitled My Grandfather’s Son, which was published in 2007. My Grandfather’s Son is one of the most interesting and inspiring books I have ever read. It tells the story of how young Clarence was raised by his grandparents after his father left his mother and his mother was unable to raise her two sons. The grandparents who raised Clarence and his brother were extremely strict and had a strong work ethic and high moral values. As a child and teenager, Clarence resented the discipline imposed on him by his grandfather, and he spent much of his adult life estranged from the man who taught him the values he now cherishes.
Justice Thomas grew up as a devout Catholic and attended Catholic schools in Savannah, Georgia. His grandparents made him work on a farm in the summers so he would not get in trouble hanging out with other young black men on the streets of Savannah. As a teenager, he wanted to become a Catholic priest, and he became the first black student to attend Saint John Vianney, a minor Catholic seminary located near Savannah that also served as a high school. Although poor, his grandfather agreed to pay the tuition ($400 a year) to allow his grandson to attend Saint John on two conditions. The first was, “If you go, you have to stay. You can’t quit.” The second was, “Don’t shame me—and don’t shame our race.”
After graduating from Saint John, Justice Thomas entered Immaculate Conception Seminary in Missouri, although he was already having second thoughts about the priesthood. When he decided to drop out of the seminary, Justice Thomas had to face his grandfather. It was not a pleasant experience, and it was the beginning of an unfortunate estrangement between Justice Thomas and the man who had raised him.
After dropping out of the Catholic seminary, Justice Thomas attended and graduated from the College of Holy Cross and Yale Law School. Despite facing discrimination in the job market, he continued to defy the odds and developed a successful legal career, which included his nomination in 1991 by the first President Bush for a seat on the U.S. Supreme Court. After a very difficult and nasty confirmation hearing before the U.S. Senate, President Bush’s appointment of Justice Thomas was confirmed by a vote of 52 to 48, with most of the Democrats in the Senate voting against confirmation. Justice Thomas discusses the confirmation hearing and responds to the allegations against him in My Grandfather’s Son. It’s a great book. I highly recommend it.
There are many parallels between the life of Justice Thomas and the life of Judge Sonia Sotomayer, who was nominated this week by President Obama to fill the most recent vacancy on the U.S. Supreme Court. Like Justice Thomas, Judge Sotomayer has an inspiring life story. She also has defied the odds. She grew up in a poor family living in a public housing project in the Bronx borough of New York. Her parents were from Puerto Rico. Like Justice Thomas, she faced discrimination as a Hispanic living in a predominately white society. Judge Sotomayer was diagnosed with childhood diabetes at age 8, and her father died when she was 9. Her mother was left with the responsibility of raising Judge Sotomayer and her brother under very difficult circumstances.
Like Justice Thomas, Judge Sotomayer attended a Catholic high school. Through her hard work and determination, she earned a scholarship to Princeton University and later graduated from Yale Law School, the same law school attended by Justice Thomas. After law school, Judge Sotomayer worked as an assistant district attorney and as an attorney with a law firm before being nominated by the first President Bush to serve on the U.S. District Court for the Southern District of New York. Ironically, the same Republican President appointed Justice Thomas to serve on the U.S. Supreme Court and Judge Sotomayer to serve on the U.S. District Court. In 1998, President Clinton elevated Judge Sotomayer to a seat on the U.S. Court of Appeals for the Second Circuit.
Another parallel between Justice Thomas and Judge Sotomayer is that race and politics both played major roles in their respective nominations to the Supreme Court. When he nominated Justice Thomas to the Supreme Court, the first President Bush was under heavy pressure to appoint someone who was black because he was filling a vacancy created by the resignation of Thurgood Marshall, the first black Supreme Court Justice. Likewise, President Obama was under heavy pressure from his liberal supporters to appoint a woman and from his Hispanic supporters to appoint a Hispanic to fill the current vacancy on the Supreme Court. With Judge Sotomayer’s nomination, President Obama was able to please everyone except conservatives, who were not going to be happy regardless of whom he had appointed. He was also able to create serious problems for conservative Republicans in the Senate who would like to oppose her nomination but who cannot afford to alienate the Hispanic community.
It is regrettable—but also a fact of life—that race, gender, and ethnicity frequently are more important than merit in today’s political environment. I am not suggesting Justice Thomas and Judge Sotomayer are not qualified to serve on the Supreme Court. I doubt seriously, however, if either one would have received the appointment if the goal had been to select the most qualified person to serve on the nation’s highest court.
Despite the parallels, there are many differences between Justice Thomas and Judge Sotomayer. The most obvious is that Justice Thomas is a conservative who believes it is the role of judges to interpret rather than make the law, and Judge Sotomayer is a liberal who believes the law must be interpreted in light of changes in the contemporary society and culture. Justice Thomas believes the Constitution and the laws adopted by legislative bodies must be interpreted as they were written—not as judges think they should have been written. He believes he is required to interpret the law in a neutral manner without regard to his personal feelings and without regard to the interests that may be before him. Judge Sotomayer has a more activist approach to judicial decision-making. President Obama has consistently said he wanted to appoint judges who would be sympathetic and empathic to those whose cases they were considering. He has found just such a person in Judge Sotomayer. On numerous occasions, she has said she cannot ignore her personal feelings as a woman and as a Hispanic.
Justice Thomas acknowledges it is difficult for judges to ignore their personal feelings and to be impartial, but he insists this is their obligation and should be their goal. In a lecture last year at the Manhattan Institute, Justice Thomas said, “No matter how ingenious, imaginative or artfully put, unless interpretative methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.”
Judge Sotomayer does not apologize for letting her personal feelings affect her decisions. Within the last few days, some of her statements regarding her judicial philosophy have been widely quoted by the media. In October 2001, she said, “I would hope a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” She has acknowledged that her decisions are affected by her experiences as a women and as a person of color. In February 2005, Judge Sotomayer even said the “Court of Appeals is where policy is made” before backtracking after realizing she had put her foot in her mouth.
In a nutshell, Judge Sotomayer embraces her gender and her ethnicity and acknowledges she is unable to be a purely objective arbiter of the cases before her. This is what President Obama wanted, and this appears to be what he got with her nomination. Justice Thomas, on the other hand, does not believe his personal experiences and preferences should enter into his decisions. Which judicial philosophy do you prefer? What type of judge do you want when your case appears before the court? I suppose your answer depends on whether the judge is going to empathize with you or with your opponent. For me, I would not feel like I had received justice if I appeared before a judge who empathized with my opponent and as a result did not apply the law in a neutral and unbiased manner.
The nomination of Judge Sotomayer to the U.S. Supreme Court is just one more reminder that elections have consequences. If you voted for President Obama, you should be very happy with his nomination of Judge Sotomayer for a seat on the Supreme Court because she appears to be exactly the type of judge President Obama promised to appoint during the campaign. If you voted against President Obama, you are probably very unhappy—but not surprised—with the appointment because you are getting exactly the type of activist judge you feared in the event of his election.
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