No one, I think, believed George H.W. Bush when he said, on nominating Clarence Thomas to fill Thurgood Marshall’s seat on the Supreme Court, that he had chosen simply on the basis of “merit”: “The fact that he’s a black and minority has nothing to do with this. He is the most qualified person.” [National Journal Congress Weekly, July 1, 1999, according to a helpful reader.]. No one seemed to be able to specify a race-blind algorithm for selecting judges would have popped Thomas’s name out first.
That should have been an embarrassment for those among Thomas’s supporters who oppose affirmative action, but they didn’t seem noticeably embarrassed, and no Republican Senator, no matter how insistent that race should be ignored in, e.g., admission to law school, was found to cast a principled vote against the practice of ticket-balancing at the Supreme Court level. On the other hand, supporters of affirmative action who criticized Thomas as not qualified for the job also had to do some twisting around: he wasn’t grossly unqualified, and their own principle cast doubt on any rigid insistence on choosing the best qualified candidate in some abstract sense.
My occasion for raking over these old coals is Thomas’s extraordinary performance in the cross-burning cases. He acted against type not only by speaking when he is normally silent, but by challenging the usual conservative opposition to restrictions on “hate speech.” His point was that the burning cross carries with it the burden of 100 years of terrorism, and that the Virginia statute could reasonably treat it as embodying a deadly threat.
I’m not sure what I think about the merits of the case. I once held the view that Thomas expressed, both about the burning cross and about the swastika. But Eugene Volokh showed me that the argument as I made it proved too much: would parading with a hammer-and-sickle through a Ukranian neighborhood be subject to the same objection, and, if not, why not? [Perhaps one could argue that the hammer-and-sickle had not been associated with systematic political violence in the US, but then neither had the swastika.] Or, to use an example that Eugene didn’t use, how about a UMW sticker in Harlan County?
But the burning cross, in its American incarnation (as opposed to its use to summon assistance in the clan warfare of highland Scotland) is the rallying symbol of a set of terrorist conspiracies. [I wonder whether it was the inspiration for the Dark Mark in the Harry Potter stories?] Its specific message is, arguably, “We will kill to protect racial privilege.” If that is the case, must the law insist that he threat be directed at some individual (as it was in one of the cases) before criminalizing it, or is it reasonable to say that any use of the burning cross constitutes a criminal threat?
Whatever one thinks about the merits, Thomas’s intervention showed that race remains relevant to the exercise of the office of judging in the United States. Unexpected as it was, it was hardly inexplicable. The same speech from Scalia or Rehnquist would have been much more surprising, and probably less persuasive. For the purposes of this case, a Supreme Court with a black member is a different court from a Supreme Court without a black member. If you think that upholding the Virginia law — which the Court seems much more likely to do now than it did before Thomas spoke out — is the wrong thing to do, that may make you even more opposed to racial preferences in hiring. But it’s very hard to argue that race shouldn’t be considered because race “doesn’t matter.” Obviously, it still does.
No, I don’t regard the argument above as dispositive. I still haven’t figured out my bottom line on preferences. My thinking is expected to clear up once my colleague Andy Sabl finishes his project on the ethics and pragmatics of ethnic categorization.