As well-loved as Thurgood Marshall was, the United States was not plunged into a national security emergency when he announced that he was going to be leaving the bench.
Were others harmed by the consideration of race in Clarence Thomas's nomination?
After Thomas' nomination, the American Bar Association did not give him their highest rating of "well qualified," choosing to go with the second-tier "qualified." Alan Dershowitz, a frequent Fox News guest and liberal legal scholar, wrote in 1991, that Thomas is sort of like a second-round pick (as were Souter and Kennedy) behind a scholar like Robert Bork, who received a unanimous "well qualified" rating from the ABA:
In Thomas's Fisher concurrence he states that affirmative action has a history of causing harm: "There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race," Thomas writes. If Thomas and his fellow justices were "B+ students", according to Dershowitz, then there were two maybe three tiers of legal scholars ahead of them. Those people aren't on the Supreme Court—that should have rubbed Thomas the wrong way.
Was Clarence Thomas harmed by the consideration of race in his nomination?
While Thomas believes that there's a grave injustice to white and Asian students at the University of Texas, he believes University is doing the greatest harm to the people it is trying to help. As he writes, "There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful."
That harm comes in two ways. First, quoting his Grutter dissent again, Thomas argues, "The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed 'otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those ... who would succeed without discrimination."
The second way is that unqualified applicants are forced to compete against overmatched qualified applicants. "Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52nd percentile of 2009 SAT takers nationwide, while Asians scored at the 93rd percentile."
So what's the total damage done to Clarence Thomas from the terribleness of affirmative action? Cruel embarrassment, writes Esquire's Charles Pierce. "He's a lifetime appointee to the highest court in the land, and he's still the dogged victim of a world he never made."
If Thomas feels so strongly about the damage done in his life and if his nomination isn't passing his own "strict scrutiny" test, then why doesn't Thomas overrule past wrongs? Well, the man's a lawyer, not a martyr.
This article is from the archive of our partner The Wire.