The harebrained lawsuit demanding disclosure whether President elect Barack Obama is a U.S. citizen or not was laughed out of New Jersey courts in October. A few weeks later Supreme Court Justice David Souter gave it just as short shrift. He denied a stay to get Obama removed from the ballot in that state. But that didn't end the matter. Supreme Court Justice Clarence Thomas saw to that. He took the almost never heard of step of reopening the issue by agreeing to put the matter to a conference vote. Thomas's ridiculous lone wolf effort to arm twist the justices to examine the birth certificate issue made no sense to most legal experts. Obama was born in Hawaii. And he has produced more than enough evidence to back that up.
But Thomas's legal meddle on the Obama birth certificate non-issue fits perfectly in with his jaundiced interpretation of law and its practice and his private vow to get revenge on his liberal tormentors. Obama is the latest would be victim. He almost certainly stirred Thomas's personal ire back in August. Obama was asked at a joint church gathering with Republican rival John McCain at the mega Saddleback church in Lake Forest, California which justice he wouldn't have nominated to the Supreme Court. He didn't hesitate. He named Thomas. And he told why.
"I don't think that he was a strong enough jurist or legal thinker at the time, for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the constitution."
Even if Obama hadn't zinged Thomas publicly he still would have been in his sights. He is the polar opposite of Thomas. He's a moderate Democrat, a former civil rights attorney, and community organizer. He backs expanded government, affirmative action, abortion rights, a severely restricted use of the death penalty, and to the absolute horror of Thomas and hard line conservatives, he backs a broader interpretation of legal precepts.
Obama almost certainly would have joined the swollen chorus of civil rights and civil liberties groups that pounded Thomas during his High Court confirmation fight in 1991 for his anti-affirmative action, anti-abortion, and anti-prisoner rights views. The Senate confirmed him by the narrowest vote of any high court judge in recent confirmation history. The rebuke stung deeply, and Thomas didn't forget or forgive. In an American Enterprise Institute lecture in 2001, he wrapped himself in the martyr's garment and said that he expected to be treated badly for challenging liberal opinion.
When asked how long he'd stay on the court, he reportedly said that he'd stay there for next 43 years of his life. He was 43 at the time. In a more revealing aside, he supposedly quipped to friends that it would take him that long to get even. Whether that was hyperbole or an apocryphal tale, it hasn't taken him 43 years to wreak his revenge.
He has been a one man wrecking crew to expunge race from law and public policy decisions. But this is not simply one man's personal bitterness over his alleged mistreatment by liberals and civil rights leaders. Nor is it a case of Thomas digging his heels in to push his retrograde view on legal matters. He wants more judges to think and act like him on the bench. Obama has made it clear not only that he would not appoint another Thomas to the High Court but that the type of judges he'd appoint will be the diametric opposite of him. There's a good chance that he will have that chance, maybe two possibly three chances.
The court's liberals, Ruth Bader Ginsberg, John Paul Stevens, and Stephen Breyer, and the moderate to conservative Anthony Kennedy are in their seventies. Obama will likely pick likeminded judicially philosophical judges to replace one or more of them. This will decisively thwart Thomas and the conservative's on the court's counter revolution. A McCain win would have insured that there would be even more justices who would likely see eye to eye with Thomas on abortion, affirmative action, the death penalty, prisoner rights, and Bush's war on terrorism orders.
That didn't happen. But federal appeals courts in future years will still deal with the sensitive issues of abortion rights, minimum mandatory sentencing, DNA testing in capital cases, the search and seizure laws, and racial profiling. Those cases will ultimately wind there way up to the Supreme Court. The High Court's rulings and dissents in these cases can permanently reshape America's legal landscape, for good or bad.
Thomas' votes on these cases are predictable. Obama's White house win insures that there won't be other justices whose votes are just as predictable and in agreement with his. Thomas butt in in the Obama birth certificate non-issue is simply a thumb nose at Obama. There is method to madness.
Earl Ofari Hutchinson is an author and political analyst. His forthcoming book is How Obama Won (Middle Passage Press, January 2009)
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