Clarence Thomas and Affirmative Action
Jude Wanniski
August 4, 1998


Memo To: The New York Times editorial page
From: Jude Wanniski
Re: Justice Thomas’s NBA speech

You do Justice Thomas a great disservice in your editorials by continuing to make the point that he would not have gotten where he is without affirmative action programs to help him along the way. Your assertion would only have meaning if there were an actual federal program of support to the concept of putting minorities at the head of a line. As far as I can tell, the only programs that helped Clarence Thomas move along were practices of the college admission at Yale to identify promising black students and give them extra weight atop their SAT or LSE scores. There is no evidence that Justice Thomas would have been barred from Yale Law School if he were white, but even if there was extra weight given his application because of his blackness, that affirmative action would be proper. The kind of affirmative action that Supreme Court Justice Clarence Thomas resists is that which requires by government influence a place at the head of the line.

Take my own experience as a young man at Brooklyn College in 1954 trying to enter UCLA in the sophomore class. My freshman grades at Brooklyn were okay, but in my third semester, while my application at UCLA was being considered, I got sick, needed a minor operation, and wound up with a straight “C” average in my course work. The admissions officer at UCLA notified me that I had been accepted despite the “C” average because there was a regular program to diversify the student body with out-of-staters, and the fact I was from Brooklyn weighed in my favor. Who knows? I might have bumped a black with better grades.

Your complaint about Justice Thomas’s speech before the all-black National Bar Association can rest on all the other grounds you mentioned, and while I would disagree, I would still say you have a legitimate point. On this one point, you are off base. Justice Thomas is where he is because at various points of his life people who helped him overlooked his blackness just as UCLA overlooked by “C” average, and correctly saw that an addition to the intellectual portfolio would benefit by his inclusion. My own information is that President George Bush saw it in exactly these terms after having met Clarence Thomas in his days at the Equal Employment Opportunity Commission. Bush appointed Thomas to the Court of Appeals only when his advisors insisted he had to have some time on that slightly lower court. Thomas was not named to “the black seat” vacated by Justice Thurgood Marshall, in the sense that President Bush had made up his mind to name Thomas to the Court when the next seat opened up. Because Justice Marshall let it be known that he would not retire until a Democrat was elected, it was most likely that Clarence Thomas would be named when Justice Harry Blackmun retired. Perhaps having been informed of President Bush’s intentions in this regard, Justice Marshall announced his retirement, which made it appear that Thomas was getting the “black seat.” When Bush said Clarence Thomas was the most qualified to hold that vacant seat, he meant it genuinely, in the sense that the Court had an enormous vacuum because it did not have a man of Thomas’s blackness and perspective.

Your editorialist, who I assume is black, should think his/her opinion through from this angle. It is not wrong for you to think that the federal government and our Supreme Court Justices should be in the business of mandating affirmative action of one sort or another. The other point of view also has legitimacy. Justice Thomas should not be criticized for having a legitimate constitutional viewpoint opposed by the Times because someone, sometime, helped him above others. Everyone of us at one time or another has benefitted by the affirmative action of someone else.