Clarence Thomas is not evil as many of his critics say nor the hero his backers worship. He’s not the legal incompetent his detractors ridicule. Nor is he the legal visionary many conservatives describe. He’s not the Uncle Tom of racist caricatures drawn by some liberal cartoonists. But his vision of equality couldn’t be more at odds with that of the first black justice Thurgood Marshall, who ended segregation.
Amidst the warring and often misleading caricatures of Thomas, it is often hard to get a clear picture of this unique and uniquely important American. For that reason a movie of Thomas describing his life in his own words is appealing.
For portions of the two-hour “documentary” – “Created Equal: Clarence Thomas in his own Words” – the viewer sees the real Clarence Thomas and gets new insights into the Supreme Court’s second African-American justice.
They see his self-reliance, his sometimes angry independence. His Ayn Rand individualism of the superhero guarding individual values against a collectivist society. His still simmering anger at the bitter confirmation hearing almost 30 years ago that came close to denying him a seat on the court. A time when he said the old Clarence Thomas “died.”
The viewer is also treated briefly to the funny, gregarious Clarence Thomas his friends know, having fun with his law clerks. Former court clerks say Thomas was the most enjoyable justice to meet on the court.
But overall, the “documentary” fails because it isn’t a documentary. It’s more a piece of right-wing propaganda. Those accustomed to high-quality, deeply reported documentaries that are the norm on PBS, will be sorely disappointed.
The fault lies in the husband-wife producer-director team, Michael and Gina Cappo Pack, who have 30-hours of interviews to work with. The only voices on the documentary are Pack’s, Justice Thomas and his wife, Virginia.
The Packs are so intent on getting across their propaganda points of ridiculing Sen. Joseph Biden and Sen. Edward M. Kennedy that they distort history. These distortions and legal questions about Pack’s nonprofit are reasons the Senate has put off confirming him to head the agency that would oversee the highly professional Voice of America.
As Baltimore Sun media critic David Zurawik put it: “If you want a one-sided, right-wing celebratory version of the life of Clarence Thomas PBS has just the ticket.” He adds, “What surprises me is that PBS (aired)… this film…in prime time no less. That’s surprising and tremendously disappointing as to the state of public television in the age of Donald Trump.”
Thomas’ retelling of his life in the segregated South is compelling but the movie has big omissions that would be unlikely in a reported documentary. We don’t find out what happened to his sister, whom he rebuked early in the Reagan administration for taking welfare. We don’t learn what became of his first wife. Nor do we find out how it happened Thomas didn’t know his revered grandfather – his bust in Thomas’ court office – had died until hearing it from his brother some time after the event.
The film clips used to portray Thomas as a falsely accused victim – a paradoxical portrayal for a man who rejects victimhood – are heavy-handed and awkward.
Thomas recalls in the film that after the FBI visited him in September 1991 after his confirmation hearings seemed over and asked him about Anita Hill, he felt like Joseph K, portrayed by Anthony Perkins in the movie based on Kafka’s The Trial where the accuser can’t figure out what he was supposed to have done wrong.
“You’re minding your business and suddenly you are arrested one morning. I had no idea what I was supposed to have done,” says Thomas as Perkins in the movie clip backdrop is saying, “You won’t find any subversive literature or pornography,” as agents search his apartment.
Thomas says he didn’t listen to Hill’s testimony. “I was tormenting myself, trying to dig through like endless memories, did I do something, did I say something, was it a joke?” When his wife told him the specifics Hill had testified to, he said he was relieved because he knew he hadn’t done them.
But the White House wanted Thomas to immediately return to the committee so that Hill’s testimony wouldn’t capture an entire news cycle. He recalls he was exhausted and that Sen. John C. Danforth, R-Mo., long his champion, turned off the lights in his Senate office and he lay down on the couch.
Drifting between wakefulness and sleep, he says in the movie, “I must have been thinking of To Kill a Mockingbird….I had lived my whole life knowing that Tom’s fate might be mine. Strip away the fancy talk and you were left with the same old story. You can’t trust black men around women. This one may be a big city judge with a law degree from Yale, but when you get right down to it he is like the rest of them.”
He said he told Danforth, “Jack this is like a high-tech lynching. And he said if that’s what you think say it.”
He did. Thomas denied categorically that he had sexual conversations with Hill, discussed pornography with her or tried to date her. Then, in some of the most famous words ever uttered in a Senate hearing, he said he was facing a “high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas. It is a message that unless you kowtow to an old order…you will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree. ”
“…I would have preferred an assassin’s bullet to this kind of living hell,” he told the committee. “The day I received the phone call last Saturday night and was told this was going to be in the press. I died. The person you knew died.” He added, “I’d rather die than withdraw.”
In the movie, Virginia Thomas said she and her husband had “put on the armor of God because it felt like the demons were loose.”
The high-tech lynching speech was God speaking, she said. “When Clarence gave the high-tech lynching speech I knew how little of my husband was sitting in front of me and I knew that God was with him because I knew he wasn’t doing that on his own because I knew how weak he was at that point.”
It probably did feel like a high-tech lynching to Thomas. No public figure had been accused of sexual harassment at that level before, so it’s not surprising Thomas thought it was a desperate effort to defeat him at any cost because he wouldn’t adhere to liberal orthodoxy.
But making the suggestion that these novel charges were like the invented infractions of The Trial or the false rape allegation against Tom Robinson is gross exaggeration and fails to recognize how much has happened in the intervening 29 years – with decades of court decisions treating sexual harassment as discrimination and the advent of the #MeToo movement.
The film implies Anita Hill made up portions of her harassment allegations as she went along, a claim for which there is little if any corroboration. The film doesn’t mention that four other women were prepared to testify that Thomas harassed them, but were not called as part of a compromise between Biden and the Republicans. Nor does it include any portrayal of Clarence Thomas as a young lawyer in the Missouri Attorney General’s office whose crude jokes would send young, religious John Ashcroft stalking off.
The film focuses on opinion polls showing two-thirds of Americans believed Thomas, not Hill. Not mentioned are the subsequent polls showing public opinion had turned around by 1994.
Michael Pack, in an interview with Laura Ingraham on Fox several weeks ago, joined his host in smiling broadly about the irony that just as Thomas predicted liberals would find themselves in the Tower of London, Biden himself was in the Tower facing a sex harassment allegation – a connection that looks increasingly like a false equivalence as the Biden accuser has suffered blows to her credibility that Anita Hill never did.
Natural rights – what’s he talking about?
Especially misleading is a long clip of Biden asking Thomas about his belief in “natural rights.” The clip makes it appear that Biden’s questions about natural rights were out of left field and designed to trick Thomas into talking about abortion.
Thomas says he doesn’t know what Biden was talking about. “Who knows? I have no idea what he was talking about,” Thomas says in the film. “…I have to be perfectly honest with you. You sit there and you have no idea what they are talking about. One of the things you do in hearings is you have to sit there and look attentively at people you know have no idea what they are talking about….Natural law was nothing more than tricking me to talk about abortion.”
The filmmaker’s intent seems to be to show Biden as simultaneously trying to trick Thomas and to do it awkwardly.
In reality, Thomas’ writings about natural rights were discussed extensively before and during the hearing and were one portion of his background that made his legal philosophy interesting and unpredictable.
The natural law issue revolves around the phrase from the Declaration of Independence that “All men are created equal” and “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Thomas, like Lincoln and the abolitionist Frederick Douglass, argued that the Declaration’s promise that all men are created equal and have natural rights cleansed the Founding Fathers of the evil of slavery and their willingness to include slavery compromises in the Constitution.
Women’s groups were wary of Thomas’ embrace of natural rights for a specific reason. Thomas had made a speech in 1987 praising a trustee of the conservative Heritage Foundation who said the natural rights of the unborn fetus should be protected by natural law. Thomas called it “a splendid example of applying natural law.”
During testimony at his confirmation hearing, Thomas said he had only skimmed the article and disagreed with it at the time but included it to persuade his conservative audience that conservatives should recognize the natural rights of blacks and support the civil rights movement.
He also said during the confirmation hearings that he never had talked to anyone about Roe v. Wade, a preposterous claim that he doubled down on during the documentary.
“They refused to believe a lot of things,” he recalls in the film. “Isn’t that fascinating. I had to have discussed it because they wanted me to have discussed it. It goes back to the thing about affirmative action because we think you ought to believe in affirmative action. Well how is that different from slavery? How is that different from segregation? How is that different from being told you can’t walk across that park….I prefer to be excluded from the park because I can live my life quite freely being excluded from the park. But you can’t live it freely without having your own thoughts.
“I felt that in my life I have been looking at the wrong people who were going to be problematic toward me. We were told it is going to be the bigot in the pickup truck, it’s going to be the Klansman….but the biggest impediment was the modern day liberal who would discount all of those things because they have the power to caricature.”
Reliving the scorching events of the Thomas confirmation battle it is understandable the Clarence Thomas, who “died” and was reborn during them, would spend his judicial career overturning the verities of the “modern-day liberal” and the legacies of the black justice who preceded him – like the unorthodox superhero of Fountainhead.
Thomas succeeded in bringing down the era of court-ordered school desegregation in the Kansas City, Missouri school desegregation decision in 1995. He succeeded again in gutting the Voting Rights Act a decade later. The court still upholds narrow affirmative action, but it won’t be long until Thomas has his way there too.
Thomas hates that Yale officials said he was admitted on affirmative action, that he was pigeon-holed in civil rights positions in the Reagan administration and chosen for the court partly because he was black.
To Marshall, segregation stigmatized blacks as inferior and enforced that inferiority. To Thomas, affirmative action stigmatized blacks as inferior. Court-ordered busing was just a crazy liberal experiment that sent blacks from bad segregated schools to bad integrated ones in hostile places like South Boston.
Though not a documentary and often misleading, Clarence Thomas in his own words explains a lot about the self-reliant, don’t tread on me man and his legacy the Supreme Court. As the most conservative justice on the court, he often does not control the court’s ruling. But on the issues of civil rights the second black justice of the Supreme Court has been largely successful at undoing the work of the first.
William H. Freivogel is publisher of GJR. He wrote about Thomas as a Supreme Court reporter in the St. Louis Post-Dispatch’s Washington Bureau. He covered portions of the 1991 confirmation hearings.