Presswatch/Thomas Linked to Marshall

...If the Court in Brown had explained its decision in terms of constitutional principle, it might have acted more quickly than it did to enforce the rights of black schoolchildren...

...One of the few that did was the New York Times, which assigned the story to its ace reporter Robert Pear...

...This meant that there were more anti-Thomas stories than not, because there are more interest groups on the left THE AMERICAN SPECTATOR OCTOBER 1991 31 than the right, and because liberals also happen to have more practice at this sort of thing...

...Little of this writing is intellectually important, and Marshall's routine dissent in death penalty cases (he never veered from his stance that capital punishment is always unconstitutional) has no chance of becoming the opinion of this Court or any to come, unless, imTerry Eastland is a resident fellow at the Ethics and Public Policy Center in Washington, D.0 probably, a string of left-wing Democrats is elected President...

...John Danforth, Thomas's strongest supporter, wants to legislate disparate impact...

...in the wake of the Thomas nomination the tendency will be to assume that blacks who dissent from the NAACP orthodoxy are politically "conservative," when in fact their views may vary across the spectrum, depending on the issue...

...True, perhaps most are, but . . . the terms black or African-American and conservative or reactionary are not mutually exclusive...

...The two-year battle over civil rights legislation is really a struggle over whether Congress will finally codify the disparate impact approach of Griggs and its progeny...

...Reinforcing this point is a provision in the law forbidding any requirement that an employer "grant preferential treatment to any individual or to any group" on account of racial imbalance in the workplace...

...His legal analysis," wrote the magazine, "may have lacked a certain rigor...

...Abortion-rights group urges Thomas' defeat" (Philadelphia Inquirer...

...May USA Today stay away from Africa and Latin America, where exuberant worship is widespread...

...0 32 THE AMERICAN SPECTATOR OCTOBER 1991...

...In reviewing his career, the Washington Post said that it was in his concurrences and dissents that Marshall was able to "emote...

...The reporters who wrote those stories and the friends of Marshall who celebrated his career in the law (Anthony Lewis, Haynes Johnson, Kathleen Sullivan of the Harvard Law School, for example), were forced to highlight the only writing they felt they could—his concurring opinions and, especially, his dissents...

...If Thomas thinks that the original Title VII does not embrace disparate impact theory, there is an interesting confffmation question here: Will the Bush Administration try to muzzle its nominee —or will it let Thomas be Thomas...

...And even though the number of Truro worshippers who speak in tongues is small, and Thomas himself does not, the press continued to want to "link" Thomas to this (for reporters) odd behavior...

...A subhead asked, "Was he changing with the times, at war with himself, or both...

...My point exactly...

...Yet readers of the New York Times would have no idea of that...

...As it was, the Court waited until the sixties and early seventies before ordering remedies, some of which (like busing) did infinitely more harm than good...

...Government can tell the difference between good and evil in this philosophy and should encourage the one and forbid the other...

...Bruce Morton, CBS, June 29 For the first time since the 1930s, conservatives will comfortably control the Supreme Court and they are likely to be there well into the next century...

...The press has yet to plumb them, but I'll introduce some evidence...

...Pear, like every other reporter on the Thomas story, failed to ask the big question that should leap out from Thomas's EEOC tenure: What did (and does) he think about disparate impact theory...

...For help, Rather might read Peter Applebome's story in the July 13 New York Times, in which he points out that those who are called black conservatives are by no means a cohesive movement...

...I'm not aware of any on-air remarks about the Court by any network journalist that differ significantly...

...Abortion rights group sees Thomas as a foe" (USA 7bday...

...I can't imagine that Thurgood Marshall, counsel for the NAACP in Brown, would disagree with Thomas that the Court should have moved faster to enforce rights...

...Not a good move: disagreement within the black community is a big part of the Thomas story...

...1971), and over the years it has been used by federal agencies to pressure employers to adopt quotas...

...Surely the Post could have found some anonymous sources inside the national office to make this point...

...Only the Washington Post refused to let the abortion rights groups dictate the day's story, reporting Thomas's comments on the Lehrman piece in the context of an article on his judicial opinions, articles, and speeches...

...Thomas, wrote Neil A. Lewis in the New York 77mes, believes Brown "was based too much on sentiment and that it suggested that black schools were automatically inferior to white schools...

...The press rushed to do stories on the views of Thomas Sowell, Walter Williams, and others...

...This Court isn't...

...I've never seen anyone "linked" in a headline to something good...

...This summer the press pictureheads, T commenting on the 1990 term of the Supreme Court, produced a number of gems: The genius of the Constitution is that it sides with the citizen against the state...

...There is another explanation not explored by the Times: that the chairman's views in some measure depended upon the context in which they were expressed...

...But it is what the networks, almost to a man, think about such matters...

...I don't think the Post chose that verb with any sense of irony, but substituting emotion for reason is no badge of distinction for a judge...

...Without detracting from his illustrious previous career as a civil rights advocate, the fact of the man's career on the bench is that it was mediocre at best...

...John Chancellor, NBC, July 23 The Rehnquist Court is much more concerned with the rights of government, the state, authority...

...Some curious reporter should have asked Bush to name just one...

...One important feature of Thomas's thinking was badly mauled by the press...

...The Washington Post, New York limes, Baltimore Sun, Philadelphia Inquirer, Los Angeles Times, Newsweek, Tune– of all their gushy stories on Marshall, not one mentioned a single opinion for the Court Marshall had written...

...It has been a common misconception that Americans who happen to be black also happen to be liberal or progressive...

...Marshall's departure means that . . . when government prerogatives collide with individual rights, increasingly, government will prevail...

...I n early August, the NAACP'S direc- for of branches threatened to expel members of the Compton, California, chapter because it had voted to support the Thomas nomination...

...Thus, as chairman, Thomas had to push publicly certain EEOC positions he disagreed with privately...

...The EEOC enforces Title VII of the Civil Rights Act of 1964 against most private employers...

...As Wilder put it, "The question is, 'How much allegiance is there to the pope?' Typically, the press reported Wilder's position without pausing to get the facts about Thomas's religion...

...A s the Thomas nomination journeyed toward confirmation hearings in September, the press tended to allow those contending both for and against him to provide the story of the day...

...lkuro is an Episcopal congregation that includes some charismatics...

...Pear found that, as chairman, Thomas "expressed complex, continually changing, often contradictory views, particularly on questions of affirmative action...

...Then there was Dan Rather's contribution on July 12: Black conservatives or reactionaries are getting a lot of attention since the Thomas nomination...

...And now to Judge Clarence Thomas, President Bush's nominee for the Marshall seat...

...Disparate impact theory was affirmed by the Supreme Court in Griggs v. Duke Power Co...

...One of the few news organizations to come close to capturing the essence of Marshall's pale intellectual contribution to the law was U.S...

...Virginia Governor L. Douglas Wilder made news the day after Thomas was named when he said that the nominee's Catholicism requires scrutiny because of the church's opposition to abortion...

...Something to keep in mind when they give you the old malarkey about the Court being true to the spirit of the Constitution...

...Fin he Thomas nomination brings for- I ward not only matters of judicial philosophy and law, but also the issue of which political views blacks are allowed to hold...

...Bush rose from the dead to speak some kind and gentle words about the curmudgeonly justice, namely that his "accomplishments on the bench will long be remembered...

...Surprisingly, not that many news organizations tried...

...To put it mildly...

...it is by no means a radical view, nor does it imply something dangerous for black Americans or anyone else...

...That was accurate enough, except, of course, for the dumb equation of conservatives and reactionaries...

...It is Griggs (and some lower court extensions of it) that the Supreme Court modified in its 1989 decision in Wards Cove v. Atonio...

...From all they've been told, they must think that this guy Thomas has some very strange ideas about one of the most famous Supreme Court decisions in history...

...Furthermore, as a law enforcement official, Thomas felt obligated to follow Supreme Court decisions of the 1980s that, to borrow a phrase, "expressed complex, continually changing, often contradictory views . . . on questions of affirmative action"--despite his personal disagreement with them...

...it suggests that Thomas sees Brown in a way that might cause harm to black Americans...

...A key fact the Times did not mention is that Thomas was one of five commissioners, and thatas chairman he had to execute policies on which he was outvoted...

...This is an elementary point that even television reporters would find easy to convey) Thomas criticizes Brown for relying on the mush of social science, especially Kenneth Clark's doll studies, instead of the firmness of constitutional principle—principle he believes (correctly) was quite available to Chief Justice Earl Warren and his colleagues...

...Applebome's piece ought to be posted in newsrooms everywhere...

...rin homas was chairman of the Equal Employment Opportunity Commission from 1982 to 1990...

...Deo days later, the Associated Press finally discovered that Thomas, who was born into a Baptist family, became a Catholic, and was educated by nuns in Catholic schools, attends (but is not a member of) Truro Episcopal Church in Fairfax, Virginia...

...The answer is obvious: It was a stupid move, terrible for the NAACP'S image...

...News & World Report...

...Any employment practice having a "disparate impact" upon minorities and women—including job testing—was suspect and had to be either validated, modified, or eliminated...

...By now Wilder had apologized (sort of) for his remarks, but the news of Thomas's current religious affiliation gave the press another opporby Terry Eastland amity to show how dismally it often treats religion...

...specifically, it outlaws intentional discrimination, or what the lawyers call "disparate treatment...

...Thus USA Today ran an article on Thomas and glum that ignorantly described singing in the Holy Spirit as "humming or crooning to signal spiritual contact...

...Jack Smith, ABC, June 30 This is biased analysis...

...In a chapter in the Cato Institute's anthology Assessing the Reagan Years, Thomas wrote that the Civil Rights Act has been "administered and interpreted by the bureaucracy and the courts in a manner far different from the law as passed by the legislature...

...And the story itself was tame...

...Given the declining health of network news divisions, it's probably too late to expect that they will move to break up the monopoly of Chancellor, Morton, et al...

...It is also unsophisticated, if not illiterate, in its understanding of the Constitution and the Court...

...Title VII forbids employment discrimination...

...The Post demonstrated better news judgment than its competitors, for it is the whole of a candidate's mind that is newsworthy, not some bit of it sliced and diced by his opponents...

...Disparate what, you say...

...The stories on his announced intention to retire, and his career in the law, were tissue-soft...

...Here are the facts: Thomas agrees with the result in Brown—indeed, he "reveres" it, too—but not the reasoning...

...And Thomas's views...

...Some are conservative, some not," wrote Applebome, who intelligently defined them "by the one thing they all have in common—a frustration with the idea that black people have one agenda defined by civil rights leaders...

...The ruling, revered by many blacks, came in a case brought by Thurgood Marshall, the man whose seat Judge Thomas would replace...

...Thomas is hardly the first to hold this view of Brown...

...a newspaper that touts its investigative skills didn't ask why the national office had pulled its threat...

...But . . . in this Supreme Court, the state wins more often than the citizen...

...The Washington Post played the expulsion threat on A-1, but the next day, after the national NAACP decided to back down and allow diversity among its chapters, the Post buried the story on page A-11...

...Now there's an obvious story idea: tell us what he did as EEOC chairman...

...This rendering of Thomas's criticism of Brown leaves out so much of what the judge has actually said as to be utterly distortional...

...the administration has been straddling the fence...

...By nominating Thomas, President Bush effectively brought into existence, so far as the press is concerned, the "black conservative...

...Of course, there is a reason for that: in his twenty-four years as a justice, Marshall wrote precious few important ones...

...None of the journalists at his last-hurrah press conference voiced skepticism when he denounced reports that he was frustrated and angry about the future of the more conservative Supreme Court as "a double-barreled lie...

...The groups got what they wanted, including such headlines as "Court Nominee Is Linked [that word again!] to Anti-Abortion Stand" (New York Times...

...It was simply assumed that he was, as Wilder put it, "a very devout Catholic...

...before finally going out of business...

...Quotas, in other words...

...It was the EEOC of the late 1960s that decided to rewrite Title VII so that it would also forbid statistical discrimination—thus, an employer is guilty when his work force does not divide into the "right" percentages of blacks, Hispanics, women, and so on...

...On July 3, abortion rights groups decided to publicize Thomas's praise of an article from the April 1987 issue of The American Spectator, in which Lewis Lehrman argued that a "child-about-tobe-born" has an inalienable right to life...

...This concerns Brown v. Boani of Education, the landmark 1954 decision striking down public school segregation...

...Nor when reporting his career did the press bother to bring up such Marshallisms as—try this from just last year—that President Bush is "dead...

...Thomas Linked to Charismatic Church," went the headline of a Northern Virginia newspaper...