Wednesday, February 20, 2008

Re: Clarence Thomas, His Autobiography, And Related Matters Pertaining To America And The Supreme Court.

February 20, 2008

Re: Clarence Thomas, His Autobiography, And Related Matters Pertaining To America And The Supreme Court.

Recently, I read Clarence Thomas’ autobiography, My Grandfather’s Son, which covers his life up to the time he joined the Supreme Court. The book was widely condemned by reviewers, though some praised it. A few, a very few, even hit the nail on the head with regard to crucial aspects of Thomas’ life and thought discussed in the book.

One might begin here by saying that this is the angriest book -- by far the angriest book -- that one has ever read. If Thomas were not a Justice, his book would be called a polemic, or a screed. To have written such a book sixteen years into the continuing honor of being a Justice of the Supreme Court is more than the word “amazing” can signify. There are, roughly speaking, about one million lawyers in this country. Nine of them, or one in about every 111,000 are on the Supreme Court. That’s less than one one-thousandth of one percent of them, if my arithmetic is right. There are 300 million people in this country, and only the same nine of them are Supreme Court Justices. That’s less than one three hundred thousandths of one percent, if my arithmetic is right. With an accomplishment like this, Thomas is angry? One thinks there must be something fundamentally wrong with this guy.

One understands, of course, that anger cannot necessarily be measured this way. Events can have such an impact on a person that no success, however great, can fully dissipate it -- although for most people great success will mitigate it, a fact not irrelevant to the saying that “living well is the best revenge.” One also fears that the kind of anger still borne and now disclosed by Thomas despite huge success may not be totally irrelevant to the psychological profile of George W. Bush, a man whose psychological problems -- coupled, to be sure, with mental inadequacy, unlike Thomas -- are widely believed to have had more than a little to do with the disasters of the last eight years. Perhaps Thomas has done us a favor after the fact in this regard, the favor being greater knowledge that, in picking leaders, we ought to try to be sure they are not persons of unlimited psychological anger and consequent high aggression. But be all as it may, it remains true that Clarence Thomas is a very angry man despite an extraordinary level of success, and does not even have the grace to hide the anger although he has risen to a level that the vast, vast run of lawyers, and the even vaster run of people, cannot aspire to.

The irony, of course, is that if there had been grace, there would have been no book. There is a book only because there was no grace.

Yet one cannot help wondering whether, at least in part, Thomas wrote the book not just to get even, but also for the money. In the book itself, he talks a lot about not having any money, and I’m pretty confident he would deeply resent and take offense at someone questioning how this could have happened despite salaries that most Americans would die for (e.g., as head of a federal agency in Washington). He would point out his prior background of poverty, his need to repay educational loans, his family responsibilities, especially after a divorce. Yet lots of unfortunate people have these problems on far lower salaries. Nor am I the only person to suspect that maybe the lack of money he so often mentions stems from a lack of competence in handling it. In any event, he does complain, often and bitterly, about lack of money, and he received a nice piece of change as an advance for writing the book: $1.5 million still buys a few things even though this is 2008.

Let me now disabuse the reader of the idea that this is to be a one sided, anti-Thomas posting: Thomas says some things that resonate deeply with this writer, things I agree with, are sympathetic to, and understand. Less than a handful of his book’s many reviewers seem to have realized or cared about these things.

To begin with, Thomas is an avatar of hard work, discipline in one’s work and heavy reliance on one’s self and one’s own efforts, as the road to success. Amen, brother. That may be the 1950s talking, particularly now when we know any bum can be successful if his Daddy was rich or president (or both). Yet, for most of us, hard work, discipline in doing one’s work, and heavy reliance on self remain the only road. They are not the royal road once portrayed. They do not guarantee one will escape failure. But for most they are the only avenue, other than cheating and dishonesty, that leads to success. It was the road followed by Thomas -- nobody seems to deny that, by the way -- and he deserves all credit for it.

If he caught a break here or there rather than relying wholly on self, well, everyone should and most do catch at least some good breaks in a world filled with bad ones.

Forgive me for telling a story that supports Thomas’ view, a braggadocious story about our school, the Massachusetts School of Law (MSL), that happened just a few days ago and that Thomas might well appreciate. Our law school is one that for years has spurned American Bar Association accreditation because the elitist, money-oriented rules of that accreditation body mean law schools, and therefore the legal profession, have ever increasingly been the preserve of the white and wealthy. Under the ABA’s rules, a school cannot effectively carry out the mission of our school, which is to provide opportunity for the less fortunate economically, including minorities. We offer opportunity to people who are capable but are excluded from ABA schools by financially or academically exclusivist standards, and lots of our students are persons who could not get into ABA schools though they are capable, hardworking and will be excellent lawyers.

We have a chapter at MSL of BLSA, the Black Law Students Association. The chapter is open to persons of any race, color, etc., but is primarily comprised of African Americans. Every year the national BLSA puts on a trial competition among BLSA Chapters. There are six regional competitions, and the top two teams in each region go to the national finals held a few weeks later. MSL competes in the Northeast Regional Competition. This year there were a total of 15 teams in the Northeast Regionals, with MSL sending four separate teams. We do not know all of the other schools, because of “secrecy” maintained to insure against bias in judging, but we nonetheless know that other schools included one of the country’s most prestigious schools, Harvard, and still others were well thought-of ABA schools like St. Johns, Rutgers, Syracuse, Albany, Pace and Touro. It is no secret that ABA schools, especially ones like Harvard, enroll African Americans who have the very best academic records and aptitude test scores of any black students.

So what happened at the Northeast Regionals a few days ago? Well, in the first round of matches every team has two trials. After these two trials, the number of competing teams is reduced from 15 to 8. By the luck of the draw, none of the four MSL teams played each other, and all won, so that all four advanced to the quarterfinal round of eight. Again by the luck of the draw, none of MSL’s four teams played each other -- but again all won, so that all advanced, and only MSL teams advanced, to the semifinals, where the four MSL teams necessarily played each other because no team was left from any other school. And from the semifinals, of course, two of the MSL teams advanced to play each other in the finals of the Northeast Regionals.

As far as we know, this has not happened before. And, especially because the luck of the draw is needed so that teams from a given school do not play each other, with one knocking out another at or before the quarterfinals, it is not likely to happen again. But how and why did it happen this time? Why did teams from the non ABA MSL sweep the competition -- competition which apparently included nothing but teams from ABA schools, including one of the country’s most prestigious law schools that gets African American students with the best previous grades and test scores? The answer is not complicated, and should make someone with Thomas’ views as pleased as punch. MSL’s coaches and team members worked very hard to prepare for the competition. Hard work was the only secret.

Now, this does lead to two other ruminations. One knows from experience that other teams did not fail to work hard: some schools make such competitions one of the focal points of their academic programs and do well year after year. So MSL did not succeed because of sloth elsewhere. As well, it goes without saying that the students from MSL are smart and talented. Without intelligence and talent, even hard work could not suffice to defeat teams from schools that select the crème de la crème of students -- white, black, brown, yellow, red or green -- as judged by higher education’s ordinary, if deeply incomplete, measuring stick of prior grades and purported aptitude test scores.

So this little story, which happened only last week, is more living proof of the rightness of Thomas’ view of the importance of hard work and discipline in one’s work.

Then, too, there is another matter as to which Thomas’ views, are very understandable. Beyond question his views stem from, were shaped by, the life he led. With a grandfather (who raised him) whom the words “stern disciplinarian” do not begin to describe, and living in a southern society that made life hell for him, Thomas had to rely on himself, on his own talent, work and discipline. Little wonder that he came to see these traits as the route to success, and to think that what a lot of liberals said about help that government should give minorities was simply a snare and a delusion for the minorities. Equally little wonder, as one or two reviewers have noted, that his background informs his constitutional views, even ones regarded as incredibly harsh, and even though he himself believes, one gathers, that a judge’s personal views should not inform his judging. Backgrounds have been informing judging since at least the days of John Marshall, so Thomas’ actions accord with this even if they are harsh and even if his view of the role of background is wrong.

Then, too, there is the question of Thomas’ bitterness -- bitterness hardly describes it -- over the fact that he has been savaged for his views, he feels, by liberals and by lots of fellow African Americans. One sympathizes with this. It is very difficult when people whom you expect would be your friends, or at least to disagree amicably rather than viciously, instead turn on you and either fail to support you or, even worse, savage you. Such, unhappily, too often seems the tale of those who are ahead of the conventional wisdom or, at least, are out of step with it. One gets a strong whiff of this every now and again in the writings of the estimable Paul Krugman. Ibsen wrote of it in An Enemy of the People, a play which somehow or other made a lasting impression when I read it as a freshman in college. This writer himself has written in a memoir of what it is like to be out of step with conventional wisdom. So one understands and sympathizes with Thomas’ deep unhappiness at having been ill treated, at least as he sees it, just because his views are different than those of other African Americans and white liberals.

Yet, notwithstanding that there are important ways in which Thomas deserves understanding and at least empathy if not actual sympathy, there remain a couple of points that one wishes were not so, but plainly are so. One is that Thomas is narcissistic, is solipsistic, is self involved to a degree that is astounding: he sees himself as the center of a life long drama. One could say once again that all this is due in no small part to the travail-filled life he led, yet one would once again also have to say this does not seem adequate when a man has risen as high as he has. At that level it’s time to give it up and to focus on other things instead of engaging in such an extensive, almost exclusive, narcissistic focus on all the hurts and slights and travails one went through.

The other point is Thomas’ relationship to accuracy or truth. I will not speak of the Anita Hill matter, as to which each side has its partisans and its proofs, with some marveling at the idea that either of these two people might be lying. I shall speak, rather, of two other matters that Thomas himself brings up in his book. In one, Thomas went to the Bush compound at Kennebunkport to be told of his impending nomination to the Supreme Court and to appear at a press conference announcing it. Thomas describes the Bush compound thusly: “As we drove through the gate, I looked with surprise at the modest wooden buildings. I’d gotten the impression from the news stories I’d read about Kennebunkport that it was a lavish private resort, but it was obviously a comfortable, unassuming retreat meant for family and friends.” Well, a few years ago I was in Kennebunkport with some friends for a few days and, like lots of touristas, I went to see the compound; you of course cannot enter it but you can stare at it from the road. This compound is “modest”? This compound is “unassuming?” Boy, we should all have such modest and unassuming places by the ocean. One cannot say Thomas’ description is a falsehood, since the nature of the compound could be thought a matter of opinion rather than fact. And yet, to tell readers all over the country that the Bush compound is modest and unassuming certainly does raise questions. Is Thomas simply an inaccurate person, which if true, has its ramifications? Was he possibly being disingenuous, conceivably even somewhat dishonest, in order to give a patron family the appearance to the public of being regular guys rather than avatars of wealth, of position, of the American aristocracy? Who can say? I only know that one finds it impossible to share his view of the compound.

The other event is far more damning with regard to truth. During the pendency of the hearings on his nomination, Thomas was being evaluated by the American Bar Association, and was being interviewed by two ABA types, one of whom, an African American, he obviously did not trust. To let Thomas speak in his own words about what happened would be best:

I was simultaneously being evaluated by the American Bar Association, and early on I had lunch with the two lawyers in charge of the ABA’s investigation. Judah Best struck me as a professional whom I could trust to be fair, but I was suspicious of Robert Watkins, a black attorney from a large law firm, Williams & Connolly. Although Watkins was polite enough, his manner was guarded and distant, and he later abstained from voting on my nomination on the grounds that he sat on the board of the Lawyers Committee for Civil Rights, a group that was adamantly opposed to me. Needless to say, he hadn’t found it necessary to mention this conflict of interest until he’d finished investigating me.

Watkins asked whether I’d ever used illegal drugs, the same question that had ostensibly short-circuited Doug Ginsburg’s confirmation in 1987. I said that I didn’t recall ever having done so. It was an uncharacteristic reply, but I’d been a heavy drinker in college and had often been around people who smoked marijuana and hashish. I was telling the truth: I didn’t remember using such drugs. I’d been afraid of them. For me illegal drugs were yet another problem I didn’t need to add to my already long list. On the other hand, it occurred to me that I might possibly have tried them once or twice while I was drunk, and I knew that a flat denial might put me at risk of being contradicted, so in the end, in order to put the issue to rest, I said that I had experimented with marijuana. [Emphasis in original.]

What Thomas is telling us is that he told a falsehood to avoid a possible problem. He really didn’t think he had done drugs, but “in the end,” in order to avoid a possible problem, he falsely said he “had experimented with marijuana.” It is ironic that someone would avoid a problem by falsely saying he had experimented with marijuana, but, irony or no, he told a lie to avoid difficulty. And, amazingly, just like the lie Jack Goldsmith admitted he told to avoid trouble in his book, The Terror Presidency (which is discussed in a posting dated October 12, 2007), Thomas seems oblivious to the possibility someone might think badly of him for lying. So justified is the lie in his own mind that there is not the slightest conception that someone else could think badly of it.

This Thomas/Goldsmith syndrome of not being in the slightest degree cognizant that others might look askance at a lie reflects, of course, the Washington syndrome, where each spent time in the upper echelons. (Thomas spent much time there and Goldsmith some time there.) This syndrome, which might sarcastically be termed “never tell the truth when a lie will do just as well,” is devastating the country and, as I occasionally write in these blogs, the lack of concern for truth is regularly corrupting the Supreme Court, on which Thomas now sits. The failure of truth --at least of unvarnished, straightforward truth -- has even completely taken over the nominating and confirmation process itself in regard to Supreme Court Justices. (If I heard them correctly -- two on television and one in person -- three of the country’s most well known journalistic commentators on the Supreme Court, Linda Greenhouse, Jeffrey Toobin and Jan Greenburg, all agreed recently that the nominating and confirmation process has become a farce.) Rather than giving unrehearsed, honest answers to questions, nominees are prepped to the nines (as Thomas was) on possible questions and desirable answers at the Senate hearings by administration lawyers and allies for weeks and months in advance. The nominees undergo practice runs, called murderboards. They are trained to use up Senators’ time by giving long answers to innocuous questions, or to questions which have innocuous, bland or unrevealing answers, while refusing to give any answers whatever to other questions on the totally phony ground -- which unbelievably has come to be widely accepted by the pols and large elements of the stupid media -- that nominees can say nothing on a particular subject because a case involving it could one day come before them. The Senators -- blowhards to a man and woman, right? -- are completely overmatched substantively because they are mere (long winded) pols who cannot begin to compete on relevant subjects with the long time federal litigators and/or judges who appear before them (e.g., Thomas, Ginsburg, Breyer, Roberts, Alito), some of whose confirmation processes have gone on extensively. The Senators, instead of asking short sharp questions specifically designed to elicit information, make lengthy speeches for the camera and the public, speeches availing nothing for the confirmation process but sometimes so long as to use up all of the blowhard’s own time for asking questions and getting answers. The whole process has become farce, with little or nothing in common with a procedure dedicated to discovering truth.

It can hardly be a surprise that a procedure so at odds with truth seeking, in a town where truth is minimal currency, results in a Supreme Court which often shows little concern for truth. As said, I occasionally write about this, and am moved to say that the latest major example, a societally very important example, occurred just six weeks or so ago, in the Stoneridge opinion handed down on January 15th. Without getting into the details of the business and accounting specifics, the essence of that case was that a cable TV company, Charter Communications, conspired with two suppliers, Motorola and Scientific-Atlanta, to engage in phony transactions that would make Charter’s accounting statements look better, that in service of this goal would fool Charter’s own accountants (the late Arthur Andersen and Company), and that in consequence would have a beneficial effect on the price of Charter’s stock. (Were there stock options for executives who would thereby benefit? -- I don’t know.) The Court’s majority admitted that it was claimed Motorola and Scientific-Atlanta knew of the illicit, stock-price-affecting goal of the false transactions to which they agreed, the dissent took it as a given that Motorola and Scientific-Atlanta knew, and, frankly, if you look at the specifics, it seems impossible for sophisticated companies -- Motorola, for God’s sake -- not to have understood that the purpose of the phony deals was to fraudulently make Charter’s accounting statements look better than they actually were and to make its stock rise accordingly. I reiterate: it was impossible not to have understood this.

Investors who had bought Charter’s fraudulently propped up stock, and who had been cheated by dishonest conduct, brought a case seeking monetary damages under the federal securities laws. The Court’s majority said there was no remedy for them. The dissent disagreed. Why is one not surprised that the majority was comprised of the Reagan, Bush I, Bush II five: Kennedy, Scalia, Thomas, Roberts and Alito -- the five appointed to do in the small guy in favor of big business, big government, and the pols. The three dissenters were liberals, Stevens, Souter and Ginsburg. (Breyer did not participate in the case.)

As is always true in Supreme Court cases, the majority gave a host of purported technical and policy reasons for its decision, and the dissent countered those reasons with opposing ones. The plethora of reasons so often given one way or another is one of the things that make Supreme Court decisions so often so boring to read. The Justices usually seem unable to cut to the heart of matters, and never is this more true, one supposes, than when the heart eviscerates their position, so that they must instead focus on matters of lesser import that, often by mere speculation, are thought to support them. Here the crucial point, the heart of the matter point, whose total absence from the majority opinion fairly screams from the page, is this: The reactionary five did not give a damn that the conduct at issue was completely dishonest, completely fraudulent, designed to fraudulently fool stock buyers, alleged to have been known by Motorola and Scientific-Atlanta to be a fraudulent sham used to fool people, and must have been known by them to be of this character.

As is true so widely in America today, especially in business and politics even if not among the ever shrinking circle of decent people (to borrow from a remark about George Pickett’s “ever shrinking circle of friends” in the movie Gettysburg), the Supreme court’s majority simply was not moved by the dishonesty or its effect on others.

Nor is Stoneridge a case without possibly crucial ramifications in a much larger context. There is at this point no doubt -- none whatever -- that a wide variety of actors played major roles contributing to the subprime mortgage mess, in which investors in securities comprised of such mortgages, or portions of such mortgages, that were bundled together into and were sold as securities are among those who are left holding the bag. The actors who facilitated the deals included huge commercial banks and huge investment banks, some of which, like Goldman Sachs, made a bundle, probably billions, on these mortgages. There is equally no doubt whatever at this point that, virtually from top to bottom, the whole business often involved the use of undue, unfair influence and outright fraud, and that this, and the securities’ lack of the claimed value, often were known to those who made a bundle from the deals and who took extensive steps to facilitate them in order to make fortunes.

Investors are going to be bringing lots of lawsuits under the securities laws based on the pervasive misconduct, and there is real concern among some of the cognoscenti that those who participated knowingly and selfishly in misconduct that now threatens to wreck ours and even the world’s economy will be able to avoid liability because of the Stoneridge decision rendered by the reactionary, screw-the-small-guy five. There are others who hope the decision will not be extended that far and who point to reasons why it might not be, but that it could be so extended is beyond doubt. In fact, perhaps “extended” is not even an apropos word: perhaps the opinion already gives succor to lots of the dishonest, blameworthy characters in the subprime mess without any need to extend it, but only to apply it as written.

Of course, you probably have read and heard very little about Stoneridge or its possible effects in the venal mainstream media. For, with few exceptions (such as David Cay Johnston of the New York Times), reporters don’t know about, don’t want to learn about, and don’t want to write about business or economics. This is too dull, too complex, and very uninteresting to people who make their living talking and writing for months on end about the trivia of horse race aspects of politics, which is all they know about or are competent to write or speak about. But Stoneridge, and certainly the lack of concern for honesty shown by the screw-the-small-guy five (plus the less central arguments which they actually made and that are not canvassed here), could nonetheless have crucial ramifications. And the lack of concern for honesty shown in Stoneridge does relate, of course, to views expressed in and actions discussed in Clarence Thomas’ autobiography.*

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* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at

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